Due Diligence Since Padilla v. Kentucky
Pleas account for nearly 95% of all criminal convictions. Many defendants
who plead guilty are not citizens of the United States. In Padilla
vs. Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010), the U.S. Supreme Court
considered the duties of counsel to advise on the immigration consequences of
a state or federal guilty (or nolo) plea.
The case itself stands for the proposition that a lawyer's failure to inform
correctly about the immigration consequences of a plea may constitute ineffective
assistance of counsel, justifying setting aside of the plea if the misinformation
is prejudicial to the client. Every criminal defense attorney should advise
the client with some degree of certainty whether a guilty plea under consideration
carries a risk of deportation. But the Court went further and stated without
precise contours that "when the deportation consequence is truly clear,
as it was in this case, the duty to give correct advice is equally clear."
That means, at a minimum, the client should be informed of the likely immigration
consequences before the plea is concluded, including the likelihood that a plea
and sentence under consideration will lead to removal, affect defenses against
removal, or otherwise impact the chances of being able to stay in the country
post-conviction.
A New Jersey intermediate appellate court, following Padilla, has ruled
that simply stating deportation may result from the plea when in fact
deportation is mandatory for the crime fails to meet professional standards
of effective assistance of counsel.
Permanent residents have different rights from other people lawfully within
the country on nonimmigrant visas, and both of those categories can be affected
differently by certain types of guilty pleas in ways that should be understood
before finalizing a plea.
Sometimes closely related crimes have strikingly divergent immigration consequences
for no apparent reason. For example, solicitation to commit the offense of possession
of marijuana for sale pursuant to A.R.S. 13-1002 under Arizona law may not lead
to removal, but facilitation to commit the same offense, A.R.S. 13-1004, which
has the same sentencing range and almost identical elements, likely will lead
to removal, under very similar circumstances. The difference in immigration
consequences between pleas is not intuitive, depends on differences in case
law between the Board of Immigration Appeals and the Ninth Circuit, may be unimportant
to the prosecutor at the time of taking the plea, but can be critical to a non-citizen
defendant later, after release from state custody.
Immigration law treats crimes very differently from criminal law. Often it
does not matter much whether an offense is a misdemeanor or felony, unless it
is a true "petty offense". Immigration law approaches criminality
from a different point of view by deciding which type of offenders are the most
deserving of removal, which usually includes but is not necessarily the same
thing as the seriousness of the offense.
Most serious offenses are specific types of "aggravated felonies".
Committing one of these usually means a permanent bar to ever coming or returning
to the United States.
Crimes of moral turpitude can also have serious immigration consequences, but
the definitions are byzantine and specific charts should be consulted and studied.
Some misdemeanor offenses have greater immigration consequences than felonies
if classified as crimes of moral turpitude, particularly if the client was found
guilty of a prior misdemeanor offense that falls into this category.
Criminal defense counsel shouldn't have to master the intracies of immigration
law. So long as the opinion of qualified expert about the likely immigration
consequences is obtained before recommending a particular plea, the duty of
due diligence to the client is fulfilled.
I am available by telephone and e-mail as an expert witness on the immigration
consequences of proposed plea agreements or prior convictions. This can be in
connection with plea negotiations, other guilty pleas, or claims of ineffective
assistance of prior counsel as a grounds for post-conviction relief. For public
defenders and others involved in the indigent criminal defense bar, often fee
vouchers for expert services in an amount not greater than $500 can be submitted
by the criminal defense attorney without prior court approval.
Click here to contact Messing Law Offices.
Beyond what the case law says, a diligent criminal defense attorney might,
as part of due diligence, also advise the client about sentencing enhancements
in the event that the defendant is deported after the conviction and illegally
attempts to re-enter in violation of federal law with this conviction of record.
Federal sentencing enhancements for prior convictions usually lead to astonishingly
and disproportionately stiff sentences (compared with the sentence for the criminal
offense initially itself) in cases of illegal reentry that are prosecuted regularly
in federal court.
I have experience and am equipped to respond knowledgeably to the tough questions.
In addition to immigration law, for years, I have handled the federal appeals
of criminal immigration cases that were defended initially by other lawyers
and led to disappointing results in the District Court. I have a success rate
of well over 70% on behalf of the convicted clients before the Ninth Circuit.
I have also defended convicted aliens against removal successfully in the immigration
court, using the same legal principles that can be found in federal criminal
law. Understanding the various permutations and combinations of the law in this
area takes time, patience and expertise.
Please let me know if I can be of assistance in your plea negotiation efforts.
Click here for information about contacting Messing
Law Offices.
Messing Law Offices, P.L.C. is headed by John H. Messing, Esq., an experienced
immigration family, business and employment attorney who practices before immigration
offices and state and federal courts. He has over 30 years experience. He is
a graduate of Princeton University and Stanford Law School, was an editor of
the Stanford Law Review, and is a former Fulbright Scholar.
Mr. Messing speaks English, French and Spanish.
At Messing Law Offices, we provide high quality legal services and expertise
to families, working men and women, and businesses. If you have a concern in
the areas of family based immigration,
business based immigration, employment based immigration,
or naturalization and you are seeking the help
of an experienced immigration lawyer, call Messing Law
Offices for professional Arizona immigration attorney assistance.
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