Ineffective Assistance of Counsel: Padilla v. Kentucky & Post-Conviction Relief for Criminal Offenses with Immigration Consequences

On March 31, 2010, the U.S. Supreme Court issued its decision in the case of Padilla v. Kentucky, Crt. No. 08-651, which held that the failure to give advice concerning the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and thus a violation of the Sixth Amendment. Immigrants facing deportation or removal because of criminal convictions now face the possibility of using the Supreme Court’s decision to solve their own immigration problems.

Padilla was a permanent resident and veteran of the Vietnam War, where he served his country honorable. He was charged under Kentucky law for transporting marijuana, an offense that carried with it an assured deportation if convicted. According to Padilla, when considering whether to plead guilty, he asked his counsel about the immigration consequences of his conviction. His counsel told him not to worry because of the long time that he had spent in the United States. This advice was dead wrong.

After pleading guilty, Padilla faced removal proceedings. It was at this time that Padilla sought post-conviction relief to withdraw his guilty plea and face trial. The Supreme Court of Kentucky denied his request.

The U.S. Supreme Court held that the failure of counsel to provide advice on the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and remanded the case for further proceedings under Kentucky law. In reaching this conclusion, the Court made a number of key findings. First, the Court found that even though immigration is governed by civil law, the immigration consequences of a conviction are inexorably intertwined. Second, the Court noted that there was no distinction between bad advice and no advice. That is, criminal defense counsel is under a duty to provide advice concerning the immigration consequence of a conviction, even if the topic was not affirmatively brought up by the client. Finally, a key point of the Supreme Court’s decision is that Padilla sought to remedy a guilty plea that was allegedly procured by ineffective assistance of counsel.

With the Supreme Court weighing in on the subject, the question now for many facing deportation or removal is how to use Padilla to gain immigration relief.

All people being held by the government have the right to file a writ of habeas corpus. That means, that they can challenge the legality of their detention. Thus, in many instances, it may be possible now to file for a writ of habeas corpus, and argue that the detention is illegal because the conviction was based on a guilty plea procured by counsel’s bad immigration advice.

But, habeas corpus may not be available for everyone facing immigration consequences of their criminal convictions. For example, in Virginia, a habeas corpus action is only available for two years after the final judgment of the trial court, or one year after the final decision on appeal.

Virginia has one more avenue that may be available. That is the writ of error coram vobis. This is a procedure meant to correct errors that affect the validity and regularity of the judgment. In Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006), a defendant attacked the length of his sentence, claiming his criminal defense counsel failed to advise him properly on the fact that the length of his sentence would cause his to be deportable. The Circuit Court of Arlington County permitted the defendant, who had served his sentence completely, to use the coram vobis procedure to reduce his sentence in order to avoid deportation proceedings.

It is important to note that Mohamed did not challenge a guilty plea itself. Indeed, in Virginia, by pleading guilty, a defendant waives a host of rights, including the right to appeal. A question remains as to whether the coram vobis procedure can be used to withdraw a guilty plea when based on ineffective assistance of counsel. The Virginia Supreme Court in Dobie v. Commonwealth, 198 Va. 762, 96 S.E.2d 747 (1957), held that coram vobis cannot be sought merely if the criminal defendant thinks he can obtain a better result by going to trial.

However, Dobie was decided long before Padilla. And, Padilla specifically addresses the situation where the guilty plea was alleged procured because of bad advice on the immigration consequences of the plea. The argument would be that the guilty plea itself is invalid because it stemmed from the ineffective immigration advice.

Such a strategy remains untested. Its success is, therefore, unknown. Moreover, this strategy faces the hurdle that guilty pleas are difficult to attack under Virginia law. However, it may be the best hope available for immigrants who have already served their sentences in Virginia, and now face the immigration consequences of their guilty plea.

Update (September 27, 2012):  The Virginia Supreme Court case of Morris v. Commonwealth has pretty much shut the door on obtaining post-conviction relief based on Padilla.  Morris held that the writ of error coram vobis and the writ of audita querela were not available in Virginia to address a claim of ineffective assistance of counsel.  The only avenue open for post-conviction relief based on a Padilla claim is a writ of habeas corpus.

There is, however, a statute of limitations on a writ of habeas corpus in Virginia.  It must be filed two years after the final judgment of the trial court, or one year after the appellate decision is final.

This creates a gross inequity in Virginia.  A person can have a conviction of a deportable crime that is ten years old.  There is no statute of limitation on the ability of the Government to use such a conviction for deportation.  But, that person may not have any clue that the advice he or she received when accepting the plea was faulty until ICE takes him or her into detention and starts removal proceedings.  That person would then have no ability in Virginia to challenge the conviction based on the Sixth Amendment violation.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Supreme Court Holds Competent Criminal Advice Includes Discussion of Immigration Consequences

On March 31, 2010, the U.S. Supreme Court held that the failure to advise a criminal defendant of the immigration consequences of a plea amounted to ineffective assistance of counsel.

Padilla had been a lawful permanent resident for forty years, and served honorably in the U.S. Armed Forces during the Vietnam War. On the advice of counsel, Padilla plead guilty to transporting a large amount of marijuana. Because of his guilty plea, Padilla faced deportation.

Padilla claimed that his defense counsel not only failed to advise him of the immigration consequences of the guilty plea, but that counsel assured him that since he had been a permanent resident for so long that he did not have to worry about his immigration status. Padilla insisted that if he knew about the immigration consequences of his guilty plea, he would have insisted on going to trial.

The Supreme Court of Kentucky, assuming Padilla’s claims were true, denied post conviction relief. Padilla appealed to the U.S. Supreme Court, which reversed the Kentucky decision.

Pursuant to the Sixth Amendment, before deciding on whether to plead guilty to a charge, a defendant is entitled to the effective assistance of competent counsel. Kentucky had argued that immigration consequences of a plea are merely collateral, and thus criminal defense counsel need not address them. The Supreme Court disagreed, noting the unique nature of deportation. While removal proceedings are a part of civil law, not criminal law, deportation is intimately related to the criminal process.

Based on this reasoning, the Supreme Court reversed the Kentucky Court’s decision, and remanded the case for further proceedings. Five justices joined in the Court’s opinion. Justice Alito concurred in the judgment, and was joined in his opinion by Chief Justice Roberts. Justices Scalia and Thomas dissented.

Arizona Law Ignites Firestorm of Controversy

Arizona passed a law addressing immigration concerns which has touched off a firestorm of controversy. The most controversial provision of the law provides that where any lawful contact is made by a law enforcement official or agency of the state or a county, city, town or other political subdivision, and a reasonable suspicion exists that the person is an alien unlawfully present in the united states, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

Opponents argue that it will be difficult for government officials to define when a reasonable suspicion exists that a person is an unlawful alien. Critics fear that police and other officials will rely on racial profiling to identify potentially undocumented aliens, thereby bringing a large number of lawful residents and U.S. citizens of Latino descent into suspicion.

Critics further note that the law will discourage many Latinos from seeking the vital services they may need from the government, for fear of being placed in immigration proceedings.

Despite pleas from immigrant rights groups across the country, and criticism from President Obama, the Governor of Arizona signed the bill into law on August 23, 2010. In response, the Board of Governors of the American Immigration Lawyers Association moved its fall conference from Arizona in protest.

H-1B Visas for Fiscal Year 2011 Still Available

On April 8, 2010, USCIS announced that it was still accepting applications for H-1B specialty worker visas for fiscal year 2011. The H-1B visas are for foreigners who work in a position requiring a bachelor's degree or higher. There are 65,000 available each year, plus an addition 20,000 available for foreigners holding a master's degree or higher from a U.S. school.

The fiscal year begins on October 1, 2010. H-1B petitions can be filed as early as 6 months in advance. Thus, April 1, 2010 was the first date on which H-1B petitions could be filed. As of April 8, 2010, 13,500 H-1B petitions had been filed, and 5,600 petitions for individuals with advanced degrees.

In recent years, the trend had been for there to be more petitions filed on April 1 than there were available visas. This results in a lottery to see which applicants receive the visas. Last, year, however, H-1B visas remained available up through December of 2009. Fiscal year 2010 appears to be starting off in the same manner.

How to Prepare for a Marriage Interview

Every applicant for a visa will be interviewed by an official from the U.S. Citizenship and Immigration Service (“USCIS”). It is USCIS’s opportunity to ensure that the intended immigrant is a real person, and that there is no fraud. The trickiest of interviews tend to be
those where a young marriage is involved.

The spouse of a U.S. citizen can become a permanent resident without waiting for a visa to become available under the preference system. That means that there is no long wait. Being a spouse of a U.S. citizen has other advantages under immigration law. A spouse can adjust in the United States, and does not have to go overseas to process at a U.S. consulate. If a spouse entered legally, the spouse can be out of status when he or she applies for permanent residency. Plus, unauthorized work will not count against the spouse of a U.S. citizen.

All of these benefits under the law create a temptation for a foreigner present in the United States to find a U.S. citizen to marry, so that the foreigner can apply for permanent residency. This is particularly true where the foreigner is out of status. It is because of this temptation that USCIS is suspicious of young marriages.

How, then, can a candidate for a visa based on a marriage prepare for a USCIS interview? The first bit of advice is to try to relax and be yourself. The USCIS officer may ask questions just for the sake of getting to know you as a person. Simply answer the questions honestly.

Next, it is a good idea to talk to your spouse about your history together before going to the interview. Talk about how you met. Reminisce about your dates. Talk about what you got each other for special holidays. Don’t try to memorize every detail. Simply go over your history so it is fresh in your mind. If your answers appear too memorized, it might draw suspicion.

Don’t shy away from bad facts. If your spouse’s parents don’t like you, say so. If you hated the last birthday present you got, don’t hide that fact. Real life has its conflicts. USCIS officers know that.

It is a good idea to have pictures with you at the interview. Try to review them before hand, and remember who was with you, who took the pictures, and what you were doing.

Review your written petitions. The interviewer will ask questions about them. It may have been months since you last saw them. Refreshing your memory is a good idea. If you see mistakes, be sure to correct them up front in the interview.

USCIS insists on evidence of a shared life together. Having a joint bank account is one way to show a joint life. But, don’t open a joint bank account simply to have one. USCIS officers may ask if you have other accounts, and which accounts you use to pay the bills and deposit your paychecks. If you have a long standing account that you use frequently, but the account with both of your names is one that is used infrequently, that will create more suspicion.

Be prepared for questions that might otherwise appear too personal or out of bounds. Some USCIS officers will ask who sleeps on which side of the bed. Some will ask about the decor of your bedroom. Don’t be insulted. Just answer calmly and accurately.

If there is suspicion during the interview, USCIS may bring out the questionnaires. They will ask one spouse to leave the room, and have the remaining spouse fill out a written questionnaire. They will tell you that it is voluntary. Of course, if you refuse it can be held against you. This is not criminal law, thus the 5th Amendment does not apply. Once finished, the USCIS officer will ask you about your answers.

Then, the other spouse will be brought in to answer the same questionnaire. The USCIS officer will compare answers. Be prepared that this might happen.

If you and your spouse normally speak in your native language, be careful about that during your interview. The interviewer can become annoyed if you speak to each other in a language other than English. If your spouse does not speak English, you must bring the interpreter. Again, try not to talk to each other in front of the officer in your native language.

If you have a lawyer, it is a good idea to have the lawyer present in the interview. The lawyer’s role is limited to that of an observer. That is, your lawyer cannot interrupt and answer questions for you. But, if an interviewer is being abusive, your lawyer can, and should, interpose. The best advice is simply to relax and tell the truth. A little preparation beforehand can help calm your nerves, and have you ready to answer whatever questions the interviewer poses.

Some Efforts to Comply with Immigration Laws Can Open a Company to Liability for Employment Discrimination

The United States uses employers to help enforce certain immigration laws. Employers, for example, are responsible to verify the identity and employment authorization of all new hires. An employer who knowingly hires a person who is not authorized to work in the United States can face stiff penalties.

Sometimes, however, in their zeal to comply with U.S. immigration laws, employers adopt policies that could run afoul of antidiscrimination laws. For example, I recently attended a conference where the goal was to educate churches on compliance with tax and other federal laws. The presenter warned the attendees that the Department of Homeland Security was more aggressive than the IRS, and stated that at a minimum the church should have a copy of a person’s driver’s license, green card and visa. His theme was that all paperwork should be completed before any work was done.

The problem with this approach (aside from the faulyt assumption that a person with a green card has or even needs a visa) is that it opens the employer to legal liability for employment discrimination. On page 1 of the I-9 form, in the very first text box, the government warns:

It is illegal to discriminate against any individual (other than an alien not authorized to work in the United States) in hiring, discharging, or recruiting or referring for a fee because of that individual's national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee.

Page 5 of the I-9 lists the type of documents that are acceptable. The documents are divided into 3 lists: A, B and C. List A documents show both identity and authorization to work. If a new hire shows a document on list A, the employer can require no further identification.

List B documents show identity. List C documents show authorization to work. If a new hire does not have a list A document, he or she must show both a list B and list C document.

Many of us are used to showing a driver’s license and a Social Security card when we start a new job. The driver’s license is a list B document that shows identity and a Social Security cards is a list C document that shows authorization to work. But, those are not the only acceptable documents.

For example, certain foreigners may be in the United States with the authorization to work. Such foreigners may have an employment authorization document, with or without a photograph. If the new hire has an employment authorization document without a photograph, that is a list C document and shows authorization to work. The foreigner can show the employment authorization document, and a driver’s license, which shows identity, and be able to work. In this situation, the employer cannot require the new hire to show a Social Security card. If the employer does require the new hire to show a Social Security card before permitting the person to work, the employer has engaged in a discriminatory practice and can be held liable for damages to the new employee.

If a person shows a green card (also known as the I-551), that person cannot be required to show any other form of documentation. A green card falls under list A, and demonstrates both identity and authorization to work. Similarly, if a U.S. citizen shows an unexpired U.S. passport, that is sufficient to show both identity and authorization to work. Moreover, if a new hire shows an employment authorization document with a photograph, that document alone is sufficient to permit the new hire to work. In these situations, the employer cannot require further identification. If the employer does, the employer has engaged in a discriminatory practice and can be held liable.

In adopting policies to ensure an employee’s ability to work in the United States, the employer should be mindful of the potential employment discrimination liability. Reading Form I-9 thoroughly, and understanding it is a good first step in balancing the duty to comply with the duty to avoid discriminatory practices.

Being Honest with the Government

If my eight years working for the United States Government taught me anything, it is not to try to lie to Federal employees.

Federal employees, particularly those who work directly on specific cases, tend to be overworked. Due to budget constraints, they are also given few resources to do their jobs. That means that case workers sometimes have tough choices about which cases will get the bulk of their attention. Lying to a Federal case worker will not endear you to them. Being human, they will likely become annoyed. This can very well work to the detriment of how much attention your case gets.

Lying also affects your credibility. A Federal case worker is less likely to find in your favor after you have lied. And why should they? If a Federal case worker has caught you in one lie, they may assume that you lied in other aspects of your case as well.

Lying to a Federal employee about something important and relevant to their job is also a crime. It can result in fines and jail time. Sometimes, when a Federal employee has discovered you lied to them, it can motivate them to bring the full force of the Department of Justice on you.

Finally, particularly in the immigration context, it is extremely difficult to get away with a lie. Often, immigration benefits depend on a background check. That means the FBI, who are extremely good at what they do, will be investigating your background. The FBI is thorough and professional. You should not expect to keep something having an important bearing on your case from the FBI.

If you have an issue that may affect your eligibility, the best course is to seek out a lawyer, be truthful in explaining to your lawyer your situation, and letting your lawyer give you the best advice for your situation. While you may not like it, that advice could be not to seek the immigration benefit.