Posts Tagged ‘Padilla v. Kentucky’

DUI and Immigration Consequences

Friday, June 14th, 2019 by W. Scott Railton

A colleague recently contacted me to ask about a plea bargain deal for a driving under the influence charge. It is always best to consider this sort of thing before making the deal.  Indeed, the Supreme Court says defense attorneys are required to do so.  In the landmark case of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court said:

“Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “`did not have to worry about immigration status since he had been in the country so long.'” 253 S.W.3d 482, 483 (Ky.2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney….. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

Now, back to my colleague’s inquiry. I wanted to relay a quick response. Unfortunately, these aren’t always simple matters. Every case is different, on its facts, and the details can very much matter.

The first step in each case is to identify the immigration status and defense goals.  Here are some threshold questions to consider:

  • First, what is the jurisdiction? Laws and consequences differ state to state.
  • Are there any aggravating factors in the case, such as harms to person or property?
  • Is marijuana, legal or not, involved in the case in any way? While it may not be an issue at the State level, it could become a big issue in future immigration applications or proceedings.
  • Is there any other type of controlled substance that is involved in the case?
  • Was the driver licensed? Were they cited for anything beside DUI?
  • What is the driver’s status in the United States? Visa holders with DUI arrests are having their visas revoked automatically.
  • Were there passengers int he car?  Under 16?
  • Is there an alcohol or drug problem? Government guidance usually requires a panel physician examination.
  • Is there any evidence of a physical or mental disorder? This is potentially a separate basis for inadmissibility.
  • Does the individual have trusted traveler benefits, such as NEXUS and Global Entry?
  • Is there a desire to apply for naturalization in the near future, or even a pending application?

U.S. immigration has gotten harder. These are challenging times for even the best qualified applicants. All potential immigration consequences need to be carefully considered before a plea bargain is struck.

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Posted in General, Marijuana and Immigration, Scott Railton |

Padilla, Sandoval, and Post-Conviction Relief

Thursday, June 23rd, 2011 by W. Scott Railton

Many courts are now considering post-conviction relief for noncitizens with convictions where advice on pleas may have been ineffective. To put more focus on this subject, I recently participated on a Washington State Bar Association panel in Seattle, entitled “Post-Conviction Relief for Noncitizens After Padilla V. Kentucky and State v. Sandoval.” My co-presenters were highly esteemed attorneys Ann Benson and Neil Fox. The Continuing Legal Education seminar should soon be available to attorneys via the State Bar’s on-line CLE program.

We specifically discussed the particulars of Padilla, Sandoval, relevant immigration laws, and various strategies for seeking post-conviction relief based on these cases. One of the big issues now is whether these cases will be applied retroactively for post-conviction relief. The majority of decisions so far are coming out this way. If it is believed that post-conviction relief could be necessary to avoid adverse immigration consequences, know that time may be of the essence to seek help. Many forms of relief are time barred, and immigration removal actions move on their own calendar, without regard to prospective relief in state courts.

Padilla v. Kentucky is a landmark U.S. Supreme Court decision from last year, which held that defense counsel has an affirmative duty to competently address immigration issues presented by a client’s criminal charges. As per the Court’s decision, “Accurate legal advice for noncitizens accused of crimes has never been more important.” The Court explicitly held that deportation is not a “collateral consequence” of the proceeding, as was held by the Kentucky Supreme Court, and has been commonly thought by attorneys.

Following Padilla, the Washington State Supreme Court issued its related and long-awaited decision in State v. Sandoval this past March. In Sandoval, a 25 year permanent resident was charged with 2nd degree rape in Grant County, and on advice of counsel plead guilty to 3rd degree rape, which would lead to certain deportation as an aggravated felon. The decision found similar obligations for defense attorneys.

Specifically, the State Supreme Court focused its decision narrowly on the advice defense counsel gave concerning deportation. The Defendant had informed counsel that they would not take the plea if it meant deportation, and was told erroneously by counsel the plea would not lead to “immediate deportation.” The Court reviewed the U.S. Supreme Court’s Strickland v. WA analysis, finding that (1) the counsel’s performance fell below objective standards of reasonableness as determined by professional standards, and (2) that the defendant was prejudiced by the representation, inasmuch as it was reasonable to believe the defendant would’ve risked trial on the 2nd degree rape charge (which had 78-102 month sentence, v. 6-12 months for 3rd degree).

The Washington Supreme Court also held that if the deportation consequence is “clear”, defense counsel is then required to correctly advise the client on such consequence. If, however, the consequence is “unclear,” counsel must advise client that deportation and other immigration consequences are possible. In practice, immigration consequences may seem unclear to most attorneys, due to the level of specialization required to analyze such matters effectively.

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Posted in General |