New York Corrects The Padilla Flaw (But So What?)

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.




4 thoughts on “New York Corrects The Padilla Flaw (But So What?)

  1. jakee308

    “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.”

    The defendant stating that they would’ve rejected the plea if they had known deportation was probable isn’t enough? Aren’t they the ONLY ones who would know whether they would’ve have taken the deal or not?

    Or when the court said “reasonable probability” do they really mean reasonable to a judge? And by reasonable they mean that the defendant makes his plea decisions totally on whether they think they’ve got a good case? What defendant has that degree of insight? Aren’t they being advised by counsel for a reason? So what this actually means (to me) is that the Defense attorney is being asked to prove that THEY would’ve advised their client to take or not take the deal noting the deportation potential and can only prove THAT by showing that they would most likely have prevailed at trial?

    I must be missing something or there’s more here that’s assumed or known that only you insider’s have knowledge of. (or not).

    1. SHG Post author

      This “insider” has no clue how a defendant would prove a “reasonable probability” that he would have gone to trial rather than taken the plea.

  2. Rob Robertson

    I’ve been doing a few Padilla habeas in VA. The AG’s office here usually concedes that the defense attorney either didn’t advise or misadvised the consequences. But, they say, the petitioners can’t establish prejudice and besides, the Court warned them that they “might” face consequences of the plea. (They’ve been doing this for a while, its in their benchbook, despite a case on point (Zigta v. Commonwealth) that says consequences are collateral and there is no duty to warn.) But the 4th Circuit USCA says that isn’t good enough to establish that the defendant wasn’t prejudiced.

    From United States v. Askinsade, 686 F.3d 248 (4th Cir. 2012) : “The district court determined that Akinsade had not been prejudiced because its admonishment regarding potential immigration consequences of the guilty plea and Akinsade’s acknowledgement of that admonishment functioned to correct the error of his counsel’s affirmative misrepresentations. We disagree in light of the equivocal nature of the admonishment, counsel’s affirmative misadvice that is clearly contrary to law, and the severity of the consequence itself.” Akinsade at 253.
    “Instead, the district court warned that Akinsade’s plea could lead to deportation. This general and equivocal admonishment is insufficient to correct counsel’s affirmative misadvice that Akinsade’s crime was not categorically a deportable offense. More importantly, the admonishment did not “properly inform” Akinsade of the consequence he faced by pleading guilty: mandatory deportation. Thus, Akinsade could not have known that deportation was a legally mandated consequence of his plea. Had he known this, he alleges that he would have chosen to go to trial rather than plead guilty.” Akinsade at 254.

    So the great Liberal Bastion of the Fourth Circuit as already held that the NY approach isn’t good enough.

    1. SHG Post author

      I couldn’t begin to figure out how it could work.

      (and I corrected your typo because that’s the kinda guy I am)

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