Musings on Immigration

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The Supreme Court Recognizes An Old Right for Immigrants!

The Supreme Court yesterday issued what can only be considered a seminal decision as it applies to the constitutional rights of all immigrants. In Padilla v. Kentucky, the court expressed, at least in summary, its dismay at the increasing difficulties caused by today’s immigration laws.

Over the 21 years of my practice, I have had literally hundreds of clients who were improperly informed or not informed at all, of the negative immigration consequences of their “plea.” It is, frankly, about time that the failure of the criminal defense bar to adequately inform their clients becomes a reason to have these convictions overturned. I foresee an enormous surge in Motions to Reopen removal proceedings based upon the Supreme Courts decision.
Some may not agree (certainly ICE won’t), and while not mentioned by name, Padilla v. Kentucky also in my view sets aside the BIA’s decision in Matter of Pickering, whch itself was severely limited in Matter of Cota-Vargas, where the BIA recognized the Full Faith and Credit Clause of the Constitution. Having a conviction corrected because a person was not informed of the consequences of that plea is clearly a legitimate reason to NOT hold that conviction as still rendering a person removalable. So says SCOTUS!

Criminal Defense lawyers around the country will now have to seek training in the immigration consequences of a plea, or do what some of the best criminal defense lawyers already do–retain competent immigration counsel to assist in the defense of their clients. AILA members–Immigration lawyers– should also proactively reach out to the criminal defense bar in their jurisdictions. Teach seminars, offer assistance, and even sign up to assist in the representation of accused individuals in state and federal courts.

Another important signal coming out of this decision is that the Supreme Court may be laying the groundwork for immigration reform as it relates to the extraordinarily harsh and failed policies of removal that were established as part of IIRAIRA (Illegal Immigration Reform Act and Immigrant Responsibility Act of 1996). The provisions substantially expanding “aggravated felony” definitions, demanding permanent bars for seemingly minor failures, and wreaking havoc on the Due Process clause of the constitution all scream for a “fix.” This decision sends a clear signal to Congress that it is time to get to work on the Reform.

Finally, I can see looking down the road, similar due process claims as they relate to the ineffective assistance of counsel in Immigration Court and before the Board of Immigration Appeals. If an person is entitled to competent representation as it pertains to the immigration consequences of their criminal plea, does it not follow that they are entitled to competent representation during their actual removal hearings? Attorney General Holder set asideMatter of Compean early in his term as Attorney General, and reinstated In Re Lozada as the standard for claiming ineffective assistance of counsel. Lozada itself is a poorly reasoned decision and requires a wasteful use of State Bar resources to use the decision to a client’s benefit. Frankly, an argument can now be made that there is, in fact, a right to counsel in Immigration Court proceedings, and that where a person cannot afford counsel, one should be appointed and paid for by the government.

Regardless of any other thoughts, however, I personally want to the thank the Supreme Court for doing the right thing in this case. It shows you that perseverance and holding the government’s feet to the fire can bring results.