by Kathy Moccio

Last summer a Minnesota Public Defender commented that the commonly held notion that immigration matters are collateral to the criminal cases of non-citizens “makes no sense at all. It’s part of their circumstances, just as much as if my client has chemical dependency issues. I have to be aware of that, and I need to give advice based upon what their circumstances are.”

On March 31, 2009 the Supreme Court agreed. In Padilla v. Kentucky, 559 U.S. ____(2010) the Court held that the Sixth Amendment right to counsel requires that non-citizen defendants receive competent immigration advice regarding the deportation risks of a plea. The Court’s recognition that deportation is inherently part of the punishment meted out to non-citizen defendants reflects the reality that immigration penalties are overly punitive. The decision paves the way for necessary changes to ensure the rights of the indigent, and others, are protected.

First, public defenders have notorious caseloads. In Minnesota budget cuts have resulted in attorneys handling double the ABA recommended caseload. Padilla clarifies the role of public defenders requiring them to focus on the immigration consequences that drive their clients’ decisions. While at initial blush this may seem a terrible burden to place on overworked attorneys, it actually frees public defenders to obtain immigration counsel to assist in the negotiation of more favorable plea agreements. This will likely alleviate the frustration and lingering doubt many attorneys struggle with when they negotiate a plea uncertain of its immigration consequences. Furthermore, working with competent immigration counsel enables public defenders to confidently argue for sentences that avoid devastating immigration consequences. The result is more effective and efficient representation which in turn benefits the criminal justice system.

Second, legislative fixes have to date inadequately protected defendants’ rights. State laws that require criminal law judges to warn defendants that a plea may carry immigration consequences amount to a warning to obtain competent immigration advice before entering a plea. Not all defendants are able to hire private immigration counsel. Padilla protects indigent immigrants who would otherwise be forced to plea without a full understanding of the immigration consequences. Furthermore, it protects immigrants who are located in jurisdictions that lack a vibrant immigration bar. This protection is particularly important for detained immigrants who are unable to travel to or call private immigration counsel.

The constitutional right to competent immigration counsel for non-citizen defendants provides needed protections against the deprivation of property, life, or all that makes life worth living. It’s not a radical idea. It’s not using the constitution to create a perfect world. It’s simply an important step towards justice.

On February 3rd the Third Circuit heard oral argument in the case of Valdaviezo-Galdamez v. Holder (case no 08-4564). This case was previously the subject of a precedent opinion in Valdaviezo-Galdamez v. Atty Gen’l, 502 F.3d 285 (3rd Cir. 2007). A copy of the Court’s opinion can be found here: http://www.ca3.uscourts.gov/opinarch/062080p.pdf%22%3Ehttp://www.ca3.uscourts.gov/opinarch/062080p.pdf. The original decision was a strong one for our side of this issue. The Court expressed an openness to considering “whether the group of which Galdamez claims to be a member – ‘young Honduran men who have been actively recruited by gangs and who have refused to join the gangs’ – is a ‘particular social group’ within the meaning of the Act.” It cited several favorable decisions on that issue but remanded because the issue had not been addressed by the Board or the IJ below.

The current case resulted in a Board denial after the issuance of its precedent decisions in S-E-G- 24 I&N Dec. 579 and E-A-G 24 I&N Dec. 591. The Board did not review the matter in a manner consistent with the Court’s opinion. It also did not provide counsel with the oppportunity to brief the issues. It also did not remand the matter directly to the IJ (as might have been appropriate given that the IJ had never addressed the issue in the original decision). Rather, it simply cited to S-E-G- and E-A-G- in holding that no social group had been established.

AILA member Ayodelle Gansallo, of HIAS in Philadelphia, is pro bono counsel for Mr. Valdaviezo. The UN High Commission on Refugees also provided an amicus brief on the issue for the Court. We will keep you apprised of developments.