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Applying Strickland to Immigration Consequences

Yesterday, the Supreme Court handed down an opinion that could affect the criminal and immigration proceedings of tens of thousands of immigrant defendants, holding that the Sixth Amendment requires criminal defense attorneys to advise their immigrant clients of the possible deportation consequences of a guilty plea.  In overturning a contrary decision by the Supreme Court of Kentucky, the Court has potentially paved the way for significant changes in the way criminal trials for immigrant defendants are handled.  [My preview and recap of oral arguments in the case are available here and here, respectively.]

In an opinion by Justice Stevens, the Court began by emphasizing that the risk of deportation must be considered an “integral part” of the possible penalty for noncitizen defendants.  Reviewing nearly a century’s worth of immigration law, the Court noted that deportation, a “drastic measure,” is now an inevitable consequence for a “vast number” of convicted immigrants.  And following recent restrictions on judicial discretionary authority over immigration consequences, the stakes of criminal convictions for noncitizens have been raised dramatically.  Thus, although the lower court held that the “collateral consequence” of deportation fell outside the scope of the Sixth Amendment, the Court rejected this reasoning, observing that it had never distinguished between direct and collateral consequences with regard to the Sixth Amendment.  Thus, the Court concluded, Padilla’s circumstances fell within the scope of Sixth Amendment protection and were subject to analysis under the test established in Strickland v. Washington.

With regard to the two-pronged Strickland test, the Court indicated that the first prong – constitutional deficiency – is “necessarily linked to the practice and expectations of the legal community,” which in turn assumes that defense attorneys must advise their clients with regard to deportation consequences.  Because of this professional norm, in addition to the Court’s prevailing view that the right to remain in the United States might be more important to an immigrant than the possibility of a jail sentence, an attorney could reasonably be expected to familiarize himself with relevant immigration statutes when, as here, they are “succinct, clear, and explicit.”  When deportation consequences are this clear, the Court found, “the duty to give correct advice is equally clear.”  With regard to the second Strickland prong – which concerns prejudice – the Court remanded to the Kentucky court for further review.

Turning to the state’s argument that Strickland applies only when counsel affirmatively misadvises his client, the Court conceded that in this case there is no relevant difference “between an act of commission and an act of omission.”   It nonetheless concluded, however, that a holding limited to affirmative misadvice would invite two absurd consequences: it would permit attorneys to remain silent on important matters, and it would deny even rudimentary deportation advice to an entire class of clients.  And although the State contended that a ruling covering both misadvice and omission would lead to a “flood” of challenges of existing guilty pleas made by noncitizen defendants, the Court countered that a similar concern was raised in Hill v. Lockhart, yet no “flood” of challenges followed that ruling.

In a concurrence joined by Chief Justice Roberts, Justice Alito agreed that Padilla’s attorney had failed to provide him effective assistance of counsel as defined by Strickland, but he disagreed with the majority’s decision that a defense attorney must advise his noncitizen client as to exactly what the consequences of a guilty plea might be.  Because of the complexity of immigration law, Justice Alito contended, the Court’s “vague, halfway” holding that attorneys must only advise their clients on immigration law that is “succinct and straightforward” had the potential to “lead to much confusion and needless litigation.”  Because criminal defense attorneys often lack expertise in immigration law, he wrote, they should instead be expected to exhibit candor about their knowledge (or lack thereof) and to refer their clients to more knowledgeable immigration specialists.

Justice Scalia, joined by Justice Thomas, filed a brief dissent.  In it, he conceded that criminal defendants would be made aware of all possible consequences of a guilty plea “in the best of all possible worlds.”  However, he wrote, “[t]he Constitution…is not an all-purpose tool for judicial construction of a perfect world, and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”  Because the Sixth Amendment only grants a defendant the right to effective assistance of counsel for defense against a criminal prosecution, and not against the “collateral consequences” of this prosecution – and because of the practical concerns raised by Justice Alito – Justice Scalia argued instead that the issues at stake should be remedied through the development of new and more targeted statutory provisions.