http://www.justice.gov/civil/oil/OIL_Padilla_Reference_Guide.pdf (This is a helpful resource.)
The U.S. Dept. of Justice, Office of Immigration Litigation has put together a very useful reference guide to assist interested parties in considering immigration consequences of criminal behavior and convictions. (A conviction is not always required.)
"In view of the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Office of Immigration Litigation (“OIL”) has prepared a comprehensive overview of the provisions of the Immigration and Nationality Act that are relevant to criminal aliens. The overview is intended to assist interested parties in understanding the potential immigration consequences of a plea to criminal charges. Padilla held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. The Court concluded that defense counsel’s failure to so advise, or defense counsel’s misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which may be a basis for withdrawing a guilty plea and vacating a conviction.
The Court’s holding in Padilla requires defense counsel to have a basic understanding of immigration law – an area in which they “may not be well versed” – in order to effectively advise their clients. Padilla, 130 S. Ct. at 1483. The decision is also of obvious importance, however, to federal and state prosecutors and judges, among other interested parties. This guide – to which many OIL attorneys have contributed – presents a brief, cogent, and clear introduction that identifies and summarizes the relevant statutes."
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The U.S. Supreme Court Decision in Padilla v. Kentucky provides an avenue for making claims of ineffective asistance of counsel claim but it does not have a blanket applicability. There actually has to, in fact, be ineffective assistance provided, which resulted in prejudice. This should not be confused with or seen as an expansion of their decision in St Cyr, which restored INA Sec 212(c) waiver relief where a plea agreement was made when that relief was still available (before it was repealed as of April 1, 1997). Plea bargains after that date were not eligible and therefore, have no St. Cyr claim for relief under former 212(c).
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Questions addressed in Padilla v. Kentucky:
1) Is the mandatory deportation that results from a guilty plea to trafficking in marijuana a "collateral consequence" that relieves counsel of an affirmative duty to advise his client per the guarantees of the Sixth Amendment?
2) Assuming deportation is a "collateral consequence", can counsel's gross misadvice about deportation constitute a ground for setting aside a guilty plea that is induced by that advice?
Conclusions:
1.) No.
2.) Not answered.
Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.
In Padilla, USSCOTUS explained that under contemporary law, “… if a noncitizen has committed an offense after … 1996 … his removal is practically inevitable.” From 1917 until 1990, a procedure to allow a discretionary judicial recommendation against deportation or “JRAD” existed, meaning no conviction was an automatically deportable offense. After the 1996 amendments to immigration law, certain offenses that were clearly deemed deportable did not have the prior mechanisms of judicial discretion or the attorney general’s authority to provide relief from deportation.
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In the immigration context, this concept is not new. When an alien has been ordered removed, he can raise a claim of ineffective assistance of counsel provided during those unfavorable immigration proceedings before the IJ. A claim may be made directly to the IJ or in the course of an appeal to the BIA. Rules were laid down by the BIA over two decades ago. The Attorney General, under GW. Bush attempted to do away with that procedure but one of the first acts by the new administration under Obama was to restore Lozada and order the EOIR (parent agency of the BIA) to write regulations to clear up and codify the requirements. The new regulations have not been promulgated yet. (It is a lengthy process.)
In 1988, the Board of Immigration Appeals (BIA) issued a decision in Matter of Lozada, which established the procedural requirements for filing a motion to reopen deportation or removal proceedings based upon a claim of ineffective assistance of counsel.
The Lozada motion has four requirements:
1.) It must be supported by an affidavit setting forth the agreement with, and representations made by counsel.
2.) It must inform the counsel against whom the claim is made of the claim and give counsel an opportunity to respond.
3.) It must also reflect whether a claim or charge has been filed with the bar to which the counsel is a member. If one has not been made, it must explain why not.
4.) Finally, it must show how the alien was prejudiced by the action or inaction of his counsel.
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It is not a huge stretch of the imagination to believe that a Padilla claim would have similar requirements. In fact, Padilla really just emphasized and reinforces the previously existing rules under Strickland:
SEE:
http://epublications.marquette.edu/cgi/viewcontent.cgi?article=4948&context=mulr
"The basic approach in Strickland—to restrict relief to cases where it is reasonably likely that serious attorney error had a detrimental effect on the outcome—is not only sensible but entirely consistent with the ideal of effective representation. Error-free trials are impossible (or virtually so), and accurate and reliable outcomes can be reached in spite of attorney or other error. In addition, retrials are quite costly, both in terms of judicial resources and the strong interest in preserving the finality of criminal convictions. These costs should not be lightly incurred."
"Therefore, it makes perfect sense to condition relief for an ineffectiveness claim on proof that the unprofessional errors of the defense attorney likely had an adverse effect on the outcome."
The Supreme Court went further to allow the lower courts to operate on the premise that "Strickland claims are to be denied if there is any conceivable basis for rationalizing the attorney‘s actions."
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"In light of Strickland, it comes as no surprise that successful ineffectiveness claims were rare, in capital and noncapital cases alike, over the ensuing decades. As one commentator reports: ―Courts rarely reverse convictions for ineffective assistance of counsel, even if the defendant‘s lawyer was asleep, drunk, unprepared, or unknowledgeable. In short, any ‗lawyer with a pulse will be deemed effective.##"
##SOURCE: Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 UTAH L. REV. 1, 1 (footnote omitted) (quoting Marc L. Miller, Wise Masters, 51 STAN. L. REV. 1751, 1786 (1999) (book review)). The infamous ―sleeping lawyer‖ case was Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000), vacated en banc, 262 F.3d 336 (5th Cir. 2001), in which the defendant challenged his capital conviction on the ground that his lawyer had slept through entire portions of the trial. Rejecting the notion that prejudice should be presumed in these circumstances, the panel majority ruled that the defendant could not win without showing that he suffered Strickland prejudice as a result of something that happened while his attorney dozed. Id. at 964. The en banc court disagreed and ruled that prejudice should be presumed when a defense lawyer sleeps through substantial parts of his client‘s capital trial. See Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc). The panel decision in Burdine, though extreme, illustrates how dismissive many courts have been of ineffectiveness claims.
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To date, few Padilla claims have been made. Those that have been made generally end up with the Circuit Courts coming to the conclusion that Padilla is not a new rule but rather a clarification the existing rule from Strickland. This conclusion allows for retroactive application but Padilla only pointed out an actual instance of affirmative misinformation/malpractice when Padilla's attorney told him wrong information about his immigration consequences.
Padilla merely instructs that a criminal defense attorney must inform his non-citizen client that his conviction (whether by plea or verdict) may have negative immigration consequences.
Specifically, Padilla's guilty plea was made becuase his attorney told him that he qualified for relief from removal when, in fact, his conviction made him deportable with no relief available.
Clear malpractice.
Please see new post at in this forum: Lozada, Strickland, and Padilla INEFFECTIVE ASSISTANCE CLAIMS
((( Is there any waiver for that?