Category Archives: Immigration Law

Hernandez: Eleventh Circuit Accepts Allegations of Bad Lawyering under Padilla v. Kentucky; Case Sent Back for an Evidentiary Hearing

The question of when a criminal defendant is entitled to a do-over because his lawyer failed to correctly advise him of the immigration consequences of a conviction in light of the Supreme Court’s decision in Padilla v. Kentucky is getting more attention from the federal appeals courts.  Today the Eleventh Circuit Court of Appeals decided the case of Rodolfo Hernandez v. United States, No. 13-10352 (decided Mar. 2, 2015).  In a brief, nine-page decision, the court concluded that Mr. Hernandez who made allegations about shoddy lawyering against his former attorney  should not have had his case summarily dismissed by a lower court; instead, the appeals court ruled, Mr. Hernandez should have been given a chance to build his case and climb what is almost always the very steep hill toward post conviction relief.

The story behind the alleged bad lawyering although pretty typical has some interesting twists.  Mr. Hernandez claimed that his former attorney did not give him correct legal advice about whether he would be deported back to Cuba — his home country —  if he pled guilty to a federal drug trafficking charge.  The lawyer had mixed opinions about the issue.  Because of the lack of diplomatic relations between the United States and Cuba it was not unusual for Cuban nationals convicted of crimes in the United States to remain in a sort of immigration limbo; technically subject to deportation but never actually being deported.  At one point, because of this unique situation, the lawyer asked the judge for his insight, but the judge refused to get involved.  Mr. Hernandez ultimately entered a plea — notably to every charge that was filed against him by the Government — and while he was serving time on his conviction received a letter from the Department of Homeland Security telling him that he may be subject to deportation.

The standard for proving a claim of ineffective assistance of counsel is a high one.  Even if a lawyer did give his client bad advice, the client, in order to secure post conviction relief, must still have to prove that the outcome of the proceedings would have been different “but for” counsel’s poor performance — the so-called prejudice test.  This is where most ineffective assistance claims run into trouble, as was the case with the Rasheed case, recently discussed in this blog.

But in a departure from how other appeals courts have ruled on the issue of prejudice — generally finding no prejudice because, among other reasons, there existed in the words of those courts overwhelming evidence of guilt —  the appeals court in this case sided with the defendant.  It did so because it accepted Mr. Hernandez’s claim that had he known about the risk of deportation that he, in fact, faced, he would not have pled guilty but instead would have opted  to fight the charges at trial.  Of course, had Mr. Hernandez  gone to trial and lost, he would have received a much stiffer penalty than the one he received following his guilty plea.  But to the court this trade off would have been a “rational” one for someone in Mr. Hernandez’s position whose main interest was avoiding deportation.

It will be interesting to see how the case unfolds now that Mr. Hernandez has been given the green-light to fully present his case to the trial judge.  I expect that this won’t be the last time we hear from the Eleventh Circuit on Mr. Hernandez’s plight, although I fear that the next time the Eleventh Circuit speaks on this matter, it will not be in Mr. Hernandez’s favor.

The decision in Hernandez v. United States, No. 13-10352 can be accessed here.

Odds and Ends (Post-Chaidez edition)

  • We have what might be our first guide on how to seek Padilla-based postconviction relief in the wake of Chaidez.  This “advisory” was co-authored by the Immigrant Defense Project and the National Immigration Project and can be downloaded here.  While the advisory is detailed and well-researched, it is still an advisory, and should not be a substitute for independent research and an individualized assessment of the case at issue.  
  •  The Sentencing Law and Policy blog picked up on an interesting law review article entitled Deporting the Pardoned which discusses and criticizes the lack of deference given by immigration laws in the deportation context to individuals who have had their convictions pardoned.  You can download the article here.  
  • The 11th Circuit today released its decision in the case of Chadrick Calvin Cole v. U.S. Attorney General, in which it held that a conviction under South Carolina’s Youthful Offender Act is a conviction for immigration/deportation purposes, even where the law gives the defendant the ability to expunge his conviction at some later date.  You can download the decision here.

April Showers Bring May Flowers*

[*I have been informed by my ever helpful wife that we are in June; I will neither admit nor deny whether I knew this at the time I thought of this title but point out that the decisions at issue in this blog post were issued in May!]

The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way.  Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.

The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter.  It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)’s “new rule” exception, otherwise know as the death knell for Padilla retroactivity.  Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.

The Krboyan case can be downloaded here, Amer, here.

In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law.  The case is State v. Frensel Gaitan, which was previously covered in this blog here.  The question to be answered, according to the New Jersey Supreme Court website, is as follows:

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?

If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.

Issue of Padilla Retroactivity Heating Up In State Appellate Courts

The issue of Padilla retroactivity has been making its way through the State appellate courts.  I have already written about the ruling from the Minnesota Court of Appeals which held in Campos v. State that Padilla could be applied retroactively.  Campos, however, was not the first state appellate case to hold as such.  Just four days before Campos was decided, the Texas Court of Appeals, in State v. Golding, ruled in similar fashion: “Considering the language of the Padilla opinion, the Strickland analysis, and the prevailing professional norms occasioned by major changes in immigration law, we hold that Padilla — as an extension of Strickland, and not a new constitutional rule — applies to this case.” State v. Golding, slip op. at 24-25.  The opinion in Golding can be downloaded here.

I should also point out that the Florida Court of Appeals has chimed in on Padilla retroactivity, albeit unfavorably to potential Padilla postconviction petitioners (say that three times in a row!).  The case is Gabriel Hernandez v. State of Florida, Case No. 3D10-2462 (3d  Dist. Apr. 6, 2011).  The saving grace here, as ALIA has helpfully pointed out, is that the Hernandez decision had little analysis on Padilla retroactivity and ultimately certified the question to the Florida Supreme Court.  This will definitely be a case to watch.

Dennis: Padilla is a “New Rule”, Not Retroactive

From the District of South Carolina comes another decision holding that Padilla is a “new rule” as per Teague v. Lane and therefore cannot be applied retroactively.  The case is Dennis v. United State, Case No. 08-CR-889-JFA (D.S.C. Apr. 19, 2011) and the petitioner there challenged his conviction by way of a Section 2255 habeas petition.  To support its “new rule” holding, the Dennis court relied primarily on its finding that Padilla was the not “dictated” by prior precedent at the time it was decided — a conclusion that at first blush might appear correct but with greater reflection is deeply flawed.

The decision can be downloaded here.

Laguna: Padilla is a “New Rule,” Not Retroactive

The Northern District of Illinois still remains a hotbed of Padilla retroactivity decisionmaking.  This time, the court, as per Judge Virginia Kendall, came out against Padilla retroactivity.  So it’s currently 2-1 at the Northern District of Illinois, in favor of Padilla non-retroactivity, if you’re keeping score.

In United States v. Laguna, the petitioner, in an unusual procedural maneuver, collaterally challenged his order of removal under Padilla v. Kentucky rather than attacking the convictions that gave rise to the order itself.  (He most likely ran out of time on the latter approach; the convictions at issue arose in 2001 and the removal order was entered against him in 2002.)  The court noted at the outset that there was no dispute that the petitioner was not advised of immigration consequences prior to his pleading guilty to the 2001 offenses.  Nevertheless, the court went on to reject the petitioner’s Padilla-based challenge on several grounds, including the non-retroactivity of Padilla.  The Laguna court went through a relatively thorough analysis before finding that Padilla constituted a “new rule” under Teague and was therefore not retroactively applicable.  The highlights of the court’s retroactivity findings are as follows:

(1) Prior to Padilla, Seventh Circuit law did NOT mandate that an attorney advise a client of immigration consequences in order to render effective assistance under the Sixth Amendment.

(2) Pre-Padilla directives contained in bar rules and professional guidelines requiring advice on immigration consequences are not considered legal rules for purposes of the new rule/old rule retroactivity analysis.

(3) Even when Padilla was decided, the courts, including the U.S. Supreme Court, lacked unanimity as to whether the Sixth Amendment required advice as to immigration consequences, thus establishing that Padilla is a new rule.

(4) Padilla did not involve the application of an old rule to a new set of facts but instead required the resolution of the threshold issue of whether the Sixth Amendment applied at all in situations concerning immigration consequences.

It is worth noting that the court’s Padilla retroactivity analysis is still dicta since it it had already rejected the petitioner’s claim on procedural grounds before reaching the issue of Padilla retroactivity.  In fact, this retroactivity discussion could be considered double dicta since the court had already decided that one, the the petitioner’s collateral challenge was procedurally barred, and two, that the petitioner would not have been able to prove Strickland prejudice pursuant to Padilla.  [The correctness of the court’s Strickland prejudice analysis is questionable: contrary to the court’s ruling, the issue of Strickland prejudice in the plea context is not whether the defendant would not have been convicted at trial had the defendant received effective assistance of counsel but instead whether he would have proceeded to trial rather than pleading guilty based on the attorney misconduct at issue.  See Hill v. Lockhart, 474 U.S. 52, 59 (1985).  It’s a fine point and probably one that would not matter in most cases of ineffective assistance, but is still worth mentioning, especially since the issue for most immigrant defendants facing imminent deportation is not actually contesting guilt in a full-blown trial but securing a favorable plea deal that would avoid adverse immigration consequences – a fact emphasized by the Padilla majority, Padilla, 130 S. Ct. at 1486.]   A final note: the petitioner in this case had to shoulder what were some pretty unsympathetic facts (for example, he impeded the government’s efforts to remove him from the country after agreeing initially to voluntary departure), which, in all likelihood, contributed to the court’s decision against him.

The decision in United States v. Laguna can be downloaded here.

Does Padilla Have Due Process Implications?

In my last post, I touched upon what I believed was the erroneous rejection of Padilla ineffective assistance claims by courts based on a defendant’s failure to raise the immigration consequence issue during his plea colloquy.  The Ninth Circuit Court of Appeals has provided additional clarification on this point in a recent decision, much to the benefit, I think, of potential Padilla claimants.  The case is Delgado-Ramos v. United States (per curium).  In Delgado-Ramos, the defendant appealed his conviction for attempted entry after deportation, arguing that his plea was invalid because the court never informed him of the immigration consequences of his conviction, in contravention of Rule 11 of the Federal Rules of Criminal Procedure.  Recognizing that such a failure did not constitute a basis for withdrawal of a plea under Ninth Circuit law — immigration consequences are considered a collateral consequence of a conviction and therefore have no due process implications, the animating concern of Rule 11 — the defendant nevertheless argued for reversal, claiming that the decision in Padilla effectively overturned Ninth Circuit law in the immigration/collateral consequence context.  The court rejected this argument, stating as follows:

[5] Because the defendant in Padilla raised only a Sixth Amendment claim, the Court had no occasion to consider the scope of a district court’s obligation under Rule 11, whether a defendant’s due process rights are violated if the court fails to inform him of the immigration consequences of his plea, or the continued viability of the distinction between direct and collateral consequences in the due process context (which traces back to Brady’s statement that a plea is voluntary so long as a defendant is informed of the direct consequences of the plea). Rather, the Court indicated only that where the immigration consequences of a plea are clear, an attorney’s failure to provide such information falls below professional norms, see id. at 1486, and therefore failure to advise a defendant of the immigration consequences of a plea can constitute a Sixth Amendment violation under some circumstances, see id. at 1486-87. While Padilla’s holding is directly applicable to our Sixth Amendment analysis in Fry, it sheds no light on the obligations a district court may have under Rule 11 and due process. Accordingly, we cannot say that Padilla “undercut[s] the theory or reasoning underlying” our decision in Amador-Leal “in such a way that the cases are clearly irreconcilable.” See Miller, 335 F.3d at 900. Because Amador-Leal remains the law of the circuit, the district court did not err in failing to advise Delgado of the immigration consequences of his plea. See Recio, 371 F.3d at 1100. Furthermore, because Delgado does not assert on appeal that he would not have entered the plea “but for the [district court’s alleged] error,” he has not demonstrated the “probability of a different result” and thus cannot show that the district court’s action affected his “substantial rights.” Dominguez Benitez, 542 U.S. at 83.

It’s an open question whether this principle will remain good law in light of the increasingly inseparable and perhaps incestuous relationship immigration law has developed with its criminal counterpart.  At present, however, it is.  And a good argument can and should be made that courts have no business looking at what a defendant said or did not say during his plea colloquy in assessing the merits of a Padilla ineffective assistance claim.

The decision in Delgado-Ramos can be downloaded here.