When the Supremes decided Padilla v. Kentucky, that non-citizen defendants were entitled to be advised of the immigration consequences of a plea before deciding to take it, they answered the pressing question of whose job it was to do so with the anticipated “dump it on the defense lawyer.” After all, it was a burden, and who better to burden?
In a trio of cases, the New York Court of Appeals has held that immigration consequences are no longer “collateral” to a plea (which apparently suggests that somebody in Albany finally put away the pocket part that includes Padilla), but rather integral to the decision to cop out.
Our resolution of this issue is grounded in the right to due process of law, the bedrock of our constitutional order. That guarantee, most plain in its defense of liberty yet complex in application, requires us to strike a careful balance between the freedom of the individual and the orderly administration of government.
Of course, if it was that “plain,” one might wonder why the court held it wasn’t a due process right before. But under the “not looking a gift horse in the mouth” theory of law, Judge Sheila Abdus-Salaam, writing for an ever fluctuating majority, goes on:
Upon review of the characteristics of modern immigration law and its entanglement with the criminal justice system, a majority of this Court . . . finds that deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea. We therefore hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.
Not the defense lawyer. Not the clerk. Not the blind guy selling lifesavers in the lobby. The trial court. It’s the trial court’s duty to “apprise” a defendant that he may be deported. And by the trial court, she means you, judge.
Interestingly, however, the duty has some inherent limits. First, the duty to “apprise” (why “apprise” as opposed to “advise,” I dunno) only arises when it is a guilty plea “to a felony.” This is what happens when judges don’t get out much, so they are unaware that “aggravated felony” under federal immigration law doesn’t mean what they think it does.
But the duty imposed on the trial court isn’t quite the same as that Padilla imposed on defense counsel. Whereas a criminal defense lawyer’s obligation is not merely to say the obvious, but to thoroughly and correctly advise (not apprise, mind you) her client as to the myriad knowns and unknowns that might apply, the burden on the trial court is to “apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.”
So somewhere in the midst of the standard plea allocution, which creates a whooshing sound throughout the courtroom, one additional line will be added. Woo hoo! That changes everything! Comfortably nestled between “you have the right to testify on your own behalf” and “a jury must find you guilty beyond a reasonable doubt,” there will be “you may be deported as a consequences of your guilty plea.” Care to ponder that a bit, Mr. Defendant? No rush, the court has all day.
But the Court of Appeals, unlike the Supreme Court (no, the real SCOTUS), to its credit, decided not to leave everything hanging in the wind pending its next ruling on the issue twenty years from now. With a shifted majority, they addressed the question of what becomes of those who have already copped a plea, without being apprised.
[I]n light of the Court’s conclusion that a trial court must notify a pleading non-citizen defendant of the possibility of deportation, the trial court’s failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea. Rather, to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial. [Footnote omitted.]
Huh? Not to be unappreciative, but how exactly is a defendant supposed to climb this mountain? Get an affidavit from Carmac, the Magnificent? Swear that he “really, really, REALLY,” would have gone to trial but for not being told of deportation?
To reach this “reasonable probability” test, the court parses remedy precedent, which is so very law-ish. What neither the majority nor the dissent consider is how a defendant (or his lawyer) might scale this mountain that precedent puts before him. The test for showing the unshowable is one thing: that it’s a burden for which evidence can’t exist doesn’t seem to concern much of anyone.
While a defendant can explain, in detail, why he would have stood a great chance at prevailing at trial, and but for the deportation piece, would have certainly chosen trial over a plea, it’s all a matter of rhetorical flourish. Thus, the remedy is reduced to how artfully the lawyer can draft the motion to vacate the plea to make it appear that the defendant would have certainly prevailed at trial even though he copped a plea.
Yet, the shifting of the burden of apprising off the defense lawyer and onto the judge is where it always should have been, and it would be insensitive of me to complain of the Court of Appeals reaching the right result on that piece. So now deportation is a direct consequence of a plea, rather than a collateral one. Fabulous. Only 357 “collateral” consequences left to fix. But it’s a start.