Under California law, accurate immigration advice from counsel concerning the actual (not merely potential) immigration consequences is compulsory.  This requirement was first established in 1987 by People v. Soriano.[135]  It was later reaffirmed by the California Supreme Court in In re Resendiz,[136] which rejected the argument that the “collateral” nature of the immigration consequences foreclosed any duty on the part of trial counsel to advise the defendant correctly concerning the immigration effects of a plea.  While the “collateral consequences” doctrine is the prevailing rule in federal court,[137] California imposes an affirmative obligation on counsel to defend against the immigration consequences of a conviction.  As seen below, this requires counsel not only to investigate and research the immigration effects, but also to take affirmative action to defend against them.  In light of this clear duty, trial counsel’s failures in this regard are a fertile source of error that frequently gives rise to grounds to vacate the conviction.

[135] People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.

[136] In re Resendiz (2001) 25 Cal.4th 230.

[137] See below for a comprehensive argument as to why the “collateral consequences” doctrine has been erroneously applied to define the scope of counsel’s duties towards his or her client. 

Implications of Padilla v. Kentucky for California Defense Counsel
By Norton Tooby "[A]ccurate legal advice for noncitizens accused of crimes has never been more important." Padilla v. Kentucky (USSC March 31, 2010). Introduction On March 31, 2010, the United States Supreme Court held, 7-2, that because deportation is an integral part of the penalty that may be imposed on defendants who plead guilty to specified crimes, defense counsel must accurately inform a defendant of any risk of deportation created by the plea. Justice Stevens, writing for the five-member majority, held that defense counsel's failure to do so constitutes constitutionally deficient performance in violation of the right to effective assistance of counsel protected by the Sixth Amendment to the United States Constitution. The question whether Padilla was entitled to reversal of the conviction depended on whether he has been prejudiced, i.e., whether a decision to reject the plea bargain would have been rational under the circumstances, a matter remanded for decision by the Kentucky courts in the first instance. Padilla v. Kentucky, 130 S.Ct. 1473 (U.S.C. March 31, 2010). This article will discuss the implications of this decision for California criminal defense counsel. There is one important issue the Supreme Court did not discuss: the fact that immigration consequences can derail the most carefully constructed purely criminal disposition. The defendant may be eligible for, and benefit from, any number of rehabilitative programs, such as alcohol or drug rehabilitation programs, anger management classes, probation or parole supervision, job training programs, boot camp, hospital treatment programs, out-patient programs, English as a Second Language courses, school of various kinds, work and school furlough, half-way houses, community correctional centers, other forms of minimal supervision custody arrangements, home detention or electronic monitoring programs, and the like. An immigration hold, however, can derail them because the defendant cannot get out of custody to participate in them. Criminal counsel must anticipate this problem and try to solve it in advance by obtaining a disposition that does not trigger deportation. We therefore need to research the immigration consequences of a disposition, not only to protect the clients immigration status, but also in order to do our core job of minimizing the crime, and minimizing the time. Impact on Existing California Law Padilla did not work much change on the California law on this subject, because in California, since 1987, the First District Court of Appeals has held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987)(ineffective assistance of counsel for failure to investigate the immigration consequences and advise a noncitizen of them prior to plea). The Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). The California Supreme Court has previously held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of (helping them avoid) disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. The United States Supreme Court's decision in Padilla underscores our responsibility to try to protect our noncitizen clients in these ways, and will hopefully increase the attention paid to existing California law on the subject and the resources devoted to helping defendants avoid immigration damage. In addition, it also emphasizes that a number of easy answers do not discharge counsel's obligation: Counsel must actually investigate these important issues, learn the client's nationality and immigration status, and attempt to defend him or her against immigration disaster, and criminal disaster, by finding and pursuing an immigration-safe disposition. (1) It is not good enough just to say deportation "might" happen, and refer the client to an immigration lawyer. The United States Supreme Court held that when the deportation consequences are clear, defense counsel must themselves give the specific advice directly to the client. The example of when these consequences are clear was a controlled substances conviction. The Supreme Court held that defense counsel must advise the defendant of the removal consequences of any conviction relating to a controlled substance, because "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." (Id. at ___.) The court continued: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." (Ibid.) The controlled substance ground of deportation is similar in structure and ease of interpretation to most conviction-based grounds of deportation. Of the 52 different conviction-based grounds of deportation, most are no more complex or difficult to decipher. See N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS, APPENDIX A, GROUNDS OF DEPORTATION (2007). There are several which are arguably more difficult to interpret, such as the crime of moral turpitude ground, INA 237(a)(2)(A) (i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I), the aggravated felony miscellaneous firearms conviction ground, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), and the aggravated felony crime of violence ground. INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F). Even those grounds, however, have been elaborated by practice aids that make it relatively easy to tell when a conviction falls within the ground of removal. Once defense counsel has assumed the obligation to research the actual immigration effects of a conviction, it is an easy matter to inform the defendant. If the answer is clear, so is the advice. If the answer is obscure, the attorney merely needs to communicate that to the client as well. If the client wants more information, it is easily available from more research or expert consultation by telephone or in person. The Supreme Court also recognized that it may sometimes be difficult to determine the immigration consequences of a conviction: Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. FN10 But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. (Id. at ___.) In a footnote, the court commented: "Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel's advice." (Id. at ___, n.10.) (2) In addition, the Supreme Court suggests that even correct advice is not necessarily enough. Counsel should attempt to avoid the adverse consequences: Moreover, the court wrote with approval of including the avoidance of immigration consequences in the plea bargaining process: Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. (Id. at ___.) This strongly implies that defense counsel would not stop at merely giving advice concerning the adverse immigration consequences of a plea: counsel must go further, and try to avoid those consequences, "as by avoiding a conviction for an offense that automatically triggers the removal consequence." (Ibid.) A failure to do this may thus constitute a "failure to defend" variation of immigration-related ineffective assistance of counsel. See, e.g., People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (2004). In addition, this language should be useful in countering the bogus argument offered by prosecutors in opposition to negotiating an immigration-harmless disposition: that it is somehow an equal protection violation of the rights of U.S. citizen defendants to do so. Required Advice In summary, the Supreme Court held that defense counsel must advise their clients on a number of important immigration consequences of a conviction: whether the conviction makes the client eligible for deportation, removal, inadmissibility, exclusion, or relief from removal. In addition, defense counsel must describe the degree of risk: whether removal is automatic, virtually inevitable, or merely possible. The concurring opinion's suggestion that all counsel need do is inform the defendant there is some risk of removal or other, and suggest that the client call an immigration lawyer, was rejected by the majority opinion. Defense counsel must learn of the nature and degree of these risks, and inform the client prior to plea, to render effective assistance of counsel. Defense counsel must attempt to protect the client against these risks, by avoiding if possible a conviction that subjects the client to possible removal, or disqualifies the client from eligibility for relief from removal. The attorney can try to protect the client against these risks by engaging in plea bargaining with these goals in view, or by taking a case to trial in an effort to avoid immigration consequences when they are sufficiently great to justify the risk " in the client's eyes " of penal consequences. (1) Risk of Deportation. The Supreme Court concluded: "The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." (Id. at ___.) The "risk of deportation" means not only that counsel must inform the client that there exists some risk or other of deportation, but must inform the client of the degree of the risk of deportation. The Supreme Court repeatedly referred to different levels of risk. Sometimes, it referred to situations in which deportation is "virtually invitable." Other times, it referred to "automatic deportation." (Id. at ___.) (2) Automatic Deportation. The Court held that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." (Id. at ___.) (3) Removal. The Court repeatedly referred both to deportation and removal. (E.g., id. at ___ ["In its view, neither counsel's failure to advise petitioner about the possibility of removal, nor counsel's incorrect advice, could provide a basis for relief."]; ___ ["Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses."].) The Court specifically referred to the change in the name of deportation proceedings from "deportation" to "removal," in which removal proceedings now include both the former deportation proceedings, and former inadmissibility or exclusion proceedings. Inadmissibility also results in "removal," so counsel must therefore inform the client of the level of risk of inadmissibility or exclusion, as well as deportation. (4) Eligibility for and Bars to Relief. The Court has previously recognized, and repeated in Padilla, its view of the importance of reaching a disposition in a criminal case that allowed the noncitizen to remain eligible to apply in immigration court for a waiver of deportation or other relief from removal: Likewise, we have recognized that preserving the possibility of discretionary relief from deportation under 212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial. St. Cyr, 533 U.S., at 323. We expected that counsel who were unaware of the discretionary relief measures would follo[w] the advice of numerous practice guides to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50. (Id. at ___.) Defense counsel must advise the client of the risk that the disposition of the criminal case will disqualify the client from eligibility to apply for relief from removal. (5) Deportability. Even if the plea does not make deportation "virtually invitable," the fact that the client is subject to deportation is a drastic immigration consequences of which counsel must make the client aware. This is made clear by the Court's reference to the ground of deportability based upon a controlled substances conviction. The Supreme Court held that defense counsel must advise the defendant of the removal consequences of any conviction relating to a controlled substance, because "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." (Id. at ___.) The court continued: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." (Ibid.) This ground of deportation, like all conviction-based grounds of deportation except aggravated felonies, makes the client "eligible for deportation" but does not disqualify him or her from eligibility for discretionary cancellation of removal. INA 240A(a)(3), 8 U.S.C. 1229b(a)(3). The Supreme Court, in essence, held that defense counsel must inform the client when a plea will make him or her deportable, even if it does not disqualify the client from eligibility for discretionary relief from removal, as in the case of a simple controlled substances conviction, even if it is not a drug-trafficking conviction. Padilla himself was convicted of possession of marijuana, which made him eligible for removal on the basis of a controlled substances conviction, but did not disqualify him from eligibility for discretionary relief from removal. Counsel for years have been expected to do this under existing standards of practice. (Id. at ___.) All it takes is a phone call to an immigration lawyer experienced in criminal issues, and to read the text of the statute. Advice " Any Advice " Is Not Enough Advice, even accurate advice, is not enough to discharge defense counsel's obligation in this area any more than it is in the purely criminal task of negotiating a plea. Is advice, even accurate advice, sufficient as to the direct penal consequences of a plea? No. We owe our clients the ethical obligation of vigorous representation. It is not enough merely to tell them the criminal axe is coming down on their necks. We must try to prevent the axe from decapitating them. In the criminal context, we obviously need to gather the client's equities, investigate and assemble exculpatory and mitigating evidence, and use it to try to negotiate a favorable result to minimize the crime and minimize the crime. In doing our normal job, we need to investigate the immigration facts of the case, assemble exculpatory and mitigating evidence of the immigration situation, and use it to try to negotiate a favorable result to minimize the crime and minimize the crime. We have not even got to Padilla yet, but already it is obvious we need to investigate and research the immigration situation in order to do our regular job. In addition, the California cases mentioned above, as well as Padilla, all require " explicitly or implicitly " that we move beyond mere advice, however accurate, and swing into action. In Soriano, supra, the client faced the common situation in which a sentence of 365 days or more triggered deportation, but a sentence of 364 days or less did not. It is implicit in Soriano that defense counsel needed to do more than just give accurate advice; she needed to try to obtain a non-deportable sentence of 364 days or less. In Barocio, supra, the holding was explicit: defense counsel rendered ineffective assistance by failing to make a motion for a Judicial Recommendation Against Deportation, i.e, a motion for a non-deportable sentence. In the same context, in which a 365-day sentence triggers deportation, defense counsel needed to try to persuade the prosecution and court to impose a non-deportable sentence of 364 days or less. In Resendiz, supra, the Supreme Court was less explicit, but nonetheless made it clear that reversal would be required if the plea would not have been entered but for the affirmative misadvice. In Bautista, supra, the Sixth District was clear on what action was required: defense counsel must recognize that a plea to a more serious count was immigration-safe, and push for that disposition. Bautista is not at all about advice. It is exclusively about action: the need to identify and pursue an immigration-safe disposition. Padilla, itself, makes this clear. The Supreme Court strongly suggested that once counsel has ascertained the adverse immigration consequences, counsel must attempt to avoid them. It cited with approval a Second Circuit rule holding ineffective assistance occurred when defense counsel failed to request a Judicial Recommendation Against Deportation. In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see Janvier, 793 F.2d 449. See also United States v. Castro, 26 F.3d 557 (C.A.5 1994). In its view, seeking a JRAD was part of the sentencing process, Janvier, 793 F.2d, at 452, even if deportation itself is a civil action. Under the Second Circuit's reasoning, the impact of a conviction on a noncitizen's ability to remain in the country was a central issue to be resolved during the sentencing process-not merely a collateral matter outside the scope of counsel's duty to provide effective representation. (Id. at ___.) Moreover, the Supreme Court wrote with approval of including the avoidance of immigration consequences in the plea bargaining process: Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. (Id. at ___.) The Court implied that defense counsel could not stop at merely giving advice " even accurate advice -- concerning the adverse immigration consequences of a plea: counsel must go further, and try to avoid those consequences, "as by avoiding a conviction for an offense that automatically triggers the removal consequence." (Ibid.) A failure to do this may thus constitute a "failure to defend" variation of immigration-related ineffective assistance of counsel. See, e.g., Bautista, supra; (ineffective assistance of counsel for failure to propose an alternative plea to a greater charged offense that would not trigger deportation); Barocio, supra (ineffective assistance of counsel for failure to request a non-deportable sentence); Soriano (ineffective assistance of counsel for failure to request a non-deportable sentence of 364 days in lieu of a deportable sentence of 365 days). These favorable California decisions represent logical implications of the basic principles laid down in Padilla, and now apply, not only in California, but in every jurisdiction in the United States. Basic Procedure The basic approach to protecting clients' immigration status is quite simple: A. Investigate. Obtain exact information on the clients immigration situation. Use a form like the Intake Form, attached. Get the client's complete criminal history, including elements of each offense of conviction and details of each sentence imposed. Once the information is obtained, counsel can develop a defense strategy by creating a "chronology" of the critical immigration and criminal history dates on which important events occurred. It can be kept up to date with each change in the law, and will provide an important tool for the ongoing development of the strategy. B. Consult an immigration expert to determine realistic criminal goals that can minimize immigration consequences. This expert can be: 1. An in-house immigration expert. 2. A consultation service such as that provided by the Immigrant Legal Resource Center. See IV, Resources, below. 3. A specific immigration lawyer experienced in criminal immigration issues. Continue to consult with immigration counsel since additional immigration questions frequently arise during the course of the case. C. Balance Immigration and Criminal Goals. Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals, if they conflict. D. Formulate a strategy that balances the adverse immigration consequences with the direct penal consequences of the criminal case, in light of the desires of the client. Working together, defense counsel and the immigration expert can go over the chronology, analyze the clients immigration situation at each point in time, discover the immigration damage caused by each significant criminal event, discover a solution to each problem, and evaluate the chances of success in obtaining each solution. For a quick checklist of immigration consequences of specific offenses, go to www.ilrc.org, choose "Info on Immigration Law," choose Criminal and Immigration Law, and download the California Quick Reference Guide to California Convictions, organized by Penal Code section. For more in-depth information, see K. Brady, DEFENDING IMMIGRANTS IN THE NINTH CIRCUIT: IMPACT OF CRIMES UNDER CALIFORNIA AND OTHER STATE LAWS (2009), or N. Tooby & J. Rollin, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005). E. Try to Obtain An Immigration-Safe Disposition. Use standard criminal defense techniques to try to achieve the client's goals. F. Final Advice to Client. At the conclusion of the case, we should inform the client of the immigration consequences of the final disposition and arm him or her with information on how to confront immigration authorities. This same approach is applicable no matter what procedural stage the criminal case has reached: the beginning of the case, during plea bargaining, during litigation, during sentencing, during probation violation proceedings, during juvenile proceedings, as well as during appeal and other post-conviction proceedings. Relationship of State Criminal Law to Federal Immigration Law Immigration laws governing the deportation process are federal in nature, passed by Congress. Most aspects of immigration law are uniform national federal rules. See N. Tooby & J. Rollin, CRIMINAL DEFENSE OF IMMIGRANTS 16.35 (2007). The immigration authorities are in general not governed by the idiosyncracies of the laws of the 50 states. The fact that the federal immigration authorities do not go by California state law can lead to serious problems. For example, if a state court withholds a judgment of conviction, so that no conviction exists under state law, defense counsel may assure a noncitizen defendant that no conviction exists. This may be true under state law, but it is false under federal immigration law. Federal law may also clash with state law concerning the circumstances in which a conviction is later erased. Many states have state rehabilitative statutes that allow a defendant to withdraw a plea and have the charge dismissed as a reward for successful completion of probation. Under state law, the defendant no longer has a conviction. Under federal immigration law, however, the conviction still exists, and may trigger deportation. Defense counsel must become aware of the federal immigration law on these subjects, and not mislead the client by advice concerning inapplicable state laws. See generally N. TOOBY, TOOBY'S GUIDE TO CRIMINAL IMMIGRATION LAW: HOW CRIMINAL AND IMMIGRATION COUNSEL CAN WORK TOGETHER (2008) (free copy available as PDF download on www.NortonTooby.com). State law becomes important, however, when analyzing whether a state conviction triggers a ground of removal. The law of the state in which the conviction was prosecuted must be considered in determining (A) the elements of the offense, (B) whether the offense is considered a felony or a misdemeanor, (C) the sentence imposed, and (D) the maximum sentence. See CRIMINAL DEFENSE OF IMMIGRANTS 16.35.

Implications of Padilla v. Kentucky for California Defense Counsel
Implications of Padilla v. Kentucky for California Defense Counsel By Norton Tooby "[A]ccurate legal advice for noncitizens accused of crimes has never been more important." Padilla v. Kentucky (USSC March 31, 2010). Introduction On March 31, 2010, the United States Supreme Court held, 7-2, that because deportation is an integral part of the penalty that may be imposed on defendants who plead guilty to specified crimes, defense counsel must accurately inform a defendant of any risk of deportation created by the plea. Justice Stevens, writing for the five-member majority, held that defense counsel's failure to do so constitutes constitutionally deficient performance in violation of the right to effective assistance of counsel protected by the Sixth Amendment to the United States Constitution. The question whether Padilla was entitled to reversal of the conviction depended on whether he has been prejudiced, i.e., whether a decision to reject the plea bargain would have been rational under the circumstances, a matter remanded for decision by the Kentucky courts in the first instance. Padilla v. Kentucky, 130 S.Ct. 1473 (U.S.C. March 31, 2010). This article will discuss the implications of this decision for California criminal defense counsel. There is one important issue the Supreme Court did not discuss: the fact that immigration consequences can derail the most carefully constructed purely criminal disposition. The defendant may be eligible for, and benefit from, any number of rehabilitative programs, such as alcohol or drug rehabilitation programs, anger management classes, probation or parole supervision, job training programs, boot camp, hospital treatment programs, out-patient programs, English as a Second Language courses, school of various kinds, work and school furlough, half-way houses, community correctional centers, other forms of minimal supervision custody arrangements, home detention or electronic monitoring programs, and the like. An immigration hold, however, can derail them because the defendant cannot get out of custody to participate in them. Criminal counsel must anticipate this problem and try to solve it in advance by obtaining a disposition that does not trigger deportation. We therefore need to research the immigration consequences of a disposition, not only to protect the clients immigration status, but also in order to do our core job of minimizing the crime, and minimizing the time. Impact on Existing California Law Padilla did not work much change on the California law on this subject, because in California, since 1987, the First District Court of Appeals has held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987)(ineffective assistance of counsel for failure to investigate the immigration consequences and advise a noncitizen of them prior to plea). The Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). The California Supreme Court has previously held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of (helping them avoid) disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. The United States Supreme Court's decision in Padilla underscores our responsibility to try to protect our noncitizen clients in these ways, and will hopefully increase the attention paid to existing California law on the subject and the resources devoted to helping defendants avoid immigration damage. In addition, it also emphasizes that a number of easy answers do not discharge counsel's obligation: Counsel must actually investigate these important issues, learn the client's nationality and immigration status, and attempt to defend him or her against immigration disaster, and criminal disaster, by finding and pursuing an immigration-safe disposition. (1) It is not good enough just to say deportation "might" happen, and refer the client to an immigration lawyer. The United States Supreme Court held that when the deportation consequences are clear, defense counsel must themselves give the specific advice directly to the client. The example of when these consequences are clear was a controlled substances conviction. The Supreme Court held that defense counsel must advise the defendant of the removal consequences of any conviction relating to a controlled substance, because "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." (Id. at ___.) The court continued: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." (Ibid.) The controlled substance ground of deportation is similar in structure and ease of interpretation to most conviction-based grounds of deportation. Of the 52 different conviction-based grounds of deportation, most are no more complex or difficult to decipher. See N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS, APPENDIX A, GROUNDS OF DEPORTATION (2007). There are several which are arguably more difficult to interpret, such as the crime of moral turpitude ground, INA 237(a)(2)(A) (i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I), the aggravated felony miscellaneous firearms conviction ground, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), and the aggravated felony crime of violence ground. INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F). Even those grounds, however, have been elaborated by practice aids that make it relatively easy to tell when a conviction falls within the ground of removal. Once defense counsel has assumed the obligation to research the actual immigration effects of a conviction, it is an easy matter to inform the defendant. If the answer is clear, so is the advice. If the answer is obscure, the attorney merely needs to communicate that to the client as well. If the client wants more information, it is easily available from more research or expert consultation by telephone or in person. The Supreme Court also recognized that it may sometimes be difficult to determine the immigration consequences of a conviction: Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. FN10 But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. (Id. at ___.) In a footnote, the court commented: "Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel's advice." (Id. at ___, n.10.) (2) In addition, the Supreme Court suggests that even correct advice is not necessarily enough. Counsel should attempt to avoid the adverse consequences: Moreover, the court wrote with approval of including the avoidance of immigration consequences in the plea bargaining process: Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. (Id. at ___.) This strongly implies that defense counsel would not stop at merely giving advice concerning the adverse immigration consequences of a plea: counsel must go further, and try to avoid those consequences, "as by avoiding a conviction for an offense that automatically triggers the removal consequence." (Ibid.) A failure to do this may thus constitute a "failure to defend" variation of immigration-related ineffective assistance of counsel. See, e.g., People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (2004). In addition, this language should be useful in countering the bogus argument offered by prosecutors in opposition to negotiating an immigration-harmless disposition: that it is somehow an equal protection violation of the rights of U.S. citizen defendants to do so. Required Advice In summary, the Supreme Court held that defense counsel must advise their clients on a number of important immigration consequences of a conviction: whether the conviction makes the client eligible for deportation, removal, inadmissibility, exclusion, or relief from removal. In addition, defense counsel must describe the degree of risk: whether removal is automatic, virtually inevitable, or merely possible. The concurring opinion's suggestion that all counsel need do is inform the defendant there is some risk of removal or other, and suggest that the client call an immigration lawyer, was rejected by the majority opinion. Defense counsel must learn of the nature and degree of these risks, and inform the client prior to plea, to render effective assistance of counsel. Defense counsel must attempt to protect the client against these risks, by avoiding if possible a conviction that subjects the client to possible removal, or disqualifies the client from eligibility for relief from removal. The attorney can try to protect the client against these risks by engaging in plea bargaining with these goals in view, or by taking a case to trial in an effort to avoid immigration consequences when they are sufficiently great to justify the risk " in the client's eyes " of penal consequences. (1) Risk of Deportation. The Supreme Court concluded: "The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." (Id. at ___.) The "risk of deportation" means not only that counsel must inform the client that there exists some risk or other of deportation, but must inform the client of the degree of the risk of deportation. The Supreme Court repeatedly referred to different levels of risk. Sometimes, it referred to situations in which deportation is "virtually invitable." Other times, it referred to "automatic deportation." (Id. at ___.) (2) Automatic Deportation. The Court held that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." (Id. at ___.) (3) Removal. The Court repeatedly referred both to deportation and removal. (E.g., id. at ___ ["In its view, neither counsel's failure to advise petitioner about the possibility of removal, nor counsel's incorrect advice, could provide a basis for relief."]; ___ ["Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses."].) The Court specifically referred to the change in the name of deportation proceedings from "deportation" to "removal," in which removal proceedings now include both the former deportation proceedings, and former inadmissibility or exclusion proceedings. Inadmissibility also results in "removal," so counsel must therefore inform the client of the level of risk of inadmissibility or exclusion, as well as deportation. (4) Eligibility for and Bars to Relief. The Court has previously recognized, and repeated in Padilla, its view of the importance of reaching a disposition in a criminal case that allowed the noncitizen to remain eligible to apply in immigration court for a waiver of deportation or other relief from removal: Likewise, we have recognized that preserving the possibility of discretionary relief from deportation under 212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial. St. Cyr, 533 U.S., at 323. We expected that counsel who were unaware of the discretionary relief measures would follo[w] the advice of numerous practice guides to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50. (Id. at ___.) Defense counsel must advise the client of the risk that the disposition of the criminal case will disqualify the client from eligibility to apply for relief from removal. (5) Deportability. Even if the plea does not make deportation "virtually invitable," the fact that the client is subject to deportation is a drastic immigration consequences of which counsel must make the client aware. This is made clear by the Court's reference to the ground of deportability based upon a controlled substances conviction. The Supreme Court held that defense counsel must advise the defendant of the removal consequences of any conviction relating to a controlled substance, because "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." (Id. at ___.) The court continued: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." (Ibid.) This ground of deportation, like all conviction-based grounds of deportation except aggravated felonies, makes the client "eligible for deportation" but does not disqualify him or her from eligibility for discretionary cancellation of removal. INA 240A(a)(3), 8 U.S.C. 1229b(a)(3). The Supreme Court, in essence, held that defense counsel must inform the client when a plea will make him or her deportable, even if it does not disqualify the client from eligibility for discretionary relief from removal, as in the case of a simple controlled substances conviction, even if it is not a drug-trafficking conviction. Padilla himself was convicted of possession of marijuana, which made him eligible for removal on the basis of a controlled substances conviction, but did not disqualify him from eligibility for discretionary relief from removal. Counsel for years have been expected to do this under existing standards of practice. (Id. at ___.) All it takes is a phone call to an immigration lawyer experienced in criminal issues, and to read the text of the statute. Advice " Any Advice " Is Not Enough Advice, even accurate advice, is not enough to discharge defense counsel's obligation in this area any more than it is in the purely criminal task of negotiating a plea. Is advice, even accurate advice, sufficient as to the direct penal consequences of a plea? No. We owe our clients the ethical obligation of vigorous representation. It is not enough merely to tell them the criminal axe is coming down on their necks. We must try to prevent the axe from decapitating them. In the criminal context, we obviously need to gather the client's equities, investigate and assemble exculpatory and mitigating evidence, and use it to try to negotiate a favorable result to minimize the crime and minimize the crime. In doing our normal job, we need to investigate the immigration facts of the case, assemble exculpatory and mitigating evidence of the immigration situation, and use it to try to negotiate a favorable result to minimize the crime and minimize the crime. We have not even got to Padilla yet, but already it is obvious we need to investigate and research the immigration situation in order to do our regular job. In addition, the California cases mentioned above, as well as Padilla, all require " explicitly or implicitly " that we move beyond mere advice, however accurate, and swing into action. In Soriano, supra, the client faced the common situation in which a sentence of 365 days or more triggered deportation, but a sentence of 364 days or less did not. It is implicit in Soriano that defense counsel needed to do more than just give accurate advice; she needed to try to obtain a non-deportable sentence of 364 days or less. In Barocio, supra, the holding was explicit: defense counsel rendered ineffective assistance by failing to make a motion for a Judicial Recommendation Against Deportation, i.e, a motion for a non-deportable sentence. In the same context, in which a 365-day sentence triggers deportation, defense counsel needed to try to persuade the prosecution and court to impose a non-deportable sentence of 364 days or less. In Resendiz, supra, the Supreme Court was less explicit, but nonetheless made it clear that reversal would be required if the plea would not have been entered but for the affirmative misadvice. In Bautista, supra, the Sixth District was clear on what action was required: defense counsel must recognize that a plea to a more serious count was immigration-safe, and push for that disposition. Bautista is not at all about advice. It is exclusively about action: the need to identify and pursue an immigration-safe disposition. Padilla, itself, makes this clear. The Supreme Court strongly suggested that once counsel has ascertained the adverse immigration consequences, counsel must attempt to avoid them. It cited with approval a Second Circuit rule holding ineffective assistance occurred when defense counsel failed to request a Judicial Recommendation Against Deportation. In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see Janvier, 793 F.2d 449. See also United States v. Castro, 26 F.3d 557 (C.A.5 1994). In its view, seeking a JRAD was part of the sentencing process, Janvier, 793 F.2d, at 452, even if deportation itself is a civil action. Under the Second Circuit's reasoning, the impact of a conviction on a noncitizen's ability to remain in the country was a central issue to be resolved during the sentencing process-not merely a collateral matter outside the scope of counsel's duty to provide effective representation. (Id. at ___.) Moreover, the Supreme Court wrote with approval of including the avoidance of immigration consequences in the plea bargaining process: Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. (Id. at ___.) The Court implied that defense counsel could not stop at merely giving advice " even accurate advice -- concerning the adverse immigration consequences of a plea: counsel must go further, and try to avoid those consequences, "as by avoiding a conviction for an offense that automatically triggers the removal consequence." (Ibid.) A failure to do this may thus constitute a "failure to defend" variation of immigration-related ineffective assistance of counsel. See, e.g., Bautista, supra; (ineffective assistance of counsel for failure to propose an alternative plea to a greater charged offense that would not trigger deportation); Barocio, supra (ineffective assistance of counsel for failure to request a non-deportable sentence); Soriano (ineffective assistance of counsel for failure to request a non-deportable sentence of 364 days in lieu of a deportable sentence of 365 days). These favorable California decisions represent logical implications of the basic principles laid down in Padilla, and now apply, not only in California, but in every jurisdiction in the United States. Basic Procedure The basic approach to protecting clients' immigration status is quite simple: A. Investigate. Obtain exact information on the clients immigration situation. Use a form like the Intake Form, attached. Get the client's complete criminal history, including elements of each offense of conviction and details of each sentence imposed. Once the information is obtained, counsel can develop a defense strategy by creating a "chronology" of the critical immigration and criminal history dates on which important events occurred. It can be kept up to date with each change in the law, and will provide an important tool for the ongoing development of the strategy. B. Consult an immigration expert to determine realistic criminal goals that can minimize immigration consequences. This expert can be: 1. An in-house immigration expert. 2. A consultation service such as that provided by the Immigrant Legal Resource Center. See IV, Resources, below. 3. A specific immigration lawyer experienced in criminal immigration issues. Continue to consult with immigration counsel since additional immigration questions frequently arise during the course of the case. C. Balance Immigration and Criminal Goals. Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals, if they conflict. D. Formulate a strategy that balances the adverse immigration consequences with the direct penal consequences of the criminal case, in light of the desires of the client. Working together, defense counsel and the immigration expert can go over the chronology, analyze the clients immigration situation at each point in time, discover the immigration damage caused by each significant criminal event, discover a solution to each problem, and evaluate the chances of success in obtaining each solution. For a quick checklist of immigration consequences of specific offenses, go to www.ilrc.org, choose "Info on Immigration Law," choose Criminal and Immigration Law, and download the California Quick Reference Guide to California Convictions, organized by Penal Code section. For more in-depth information, see K. Brady, DEFENDING IMMIGRANTS IN THE NINTH CIRCUIT: IMPACT OF CRIMES UNDER CALIFORNIA AND OTHER STATE LAWS (2009), or N. Tooby & J. Rollin, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005). E. Try to Obtain An Immigration-Safe Disposition. Use standard criminal defense techniques to try to achieve the client's goals. F. Final Advice to Client. At the conclusion of the case, we should inform the client of the immigration consequences of the final disposition and arm him or her with information on how to confront immigration authorities. This same approach is applicable no matter what procedural stage the criminal case has reached: the beginning of the case, during plea bargaining, during litigation, during sentencing, during probation violation proceedings, during juvenile proceedings, as well as during appeal and other post-conviction proceedings. Relationship of State Criminal Law to Federal Immigration Law Immigration laws governing the deportation process are federal in nature, passed by Congress. Most aspects of immigration law are uniform national federal rules. See N. Tooby & J. Rollin, CRIMINAL DEFENSE OF IMMIGRANTS 16.35 (2007). The immigration authorities are in general not governed by the idiosyncracies of the laws of the 50 states. The fact that the federal immigration authorities do not go by California state law can lead to serious problems. For example, if a state court withholds a judgment of conviction, so that no conviction exists under state law, defense counsel may assure a noncitizen defendant that no conviction exists. This may be true under state law, but it is false under federal immigration law. Federal law may also clash with state law concerning the circumstances in which a conviction is later erased. Many states have state rehabilitative statutes that allow a defendant to withdraw a plea and have the charge dismissed as a reward for successful completion of probation. Under state law, the defendant no longer has a conviction. Under federal immigration law, however, the conviction still exists, and may trigger deportation. Defense counsel must become aware of the federal immigration law on these subjects, and not mislead the client by advice concerning inapplicable state laws. See generally N. TOOBY, TOOBY'S GUIDE TO CRIMINAL IMMIGRATION LAW: HOW CRIMINAL AND IMMIGRATION COUNSEL CAN WORK TOGETHER (2008) (free copy available as PDF download on www.NortonTooby.com). State law becomes important, however, when analyzing whether a state conviction triggers a ground of removal. The law of the state in which the conviction was prosecuted must be considered in determining (A) the elements of the offense, (B) whether the offense is considered a felony or a misdemeanor, (C) the sentence imposed, and (D) the maximum sentence. See CRIMINAL DEFENSE OF IMMIGRANTS 16.35.

Third Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY
United States v. Orocio, 645 F.3d 630, 2011 WL 2557232 (3d Cir. Jun. 29, 2011) (We therefore hold that, because Padilla followed directly from Strickland and long-established professional norms, it is an "old rule" for Teague purposes and is retroactively applicable on collateral review. . . . Because Mr. Padilla's attorney was found to be deficient under the prevailing professional norms of 2002, it is not unreasonable to apply those same norms to Mr. Orocio's attorney in 2004.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CASES HOLDING PADILLA IS RETROACTIVE
United States v. Orocio, 645 F.3d 630, No. 10-1231, 2011 WL 2557232, at *7 (3d. Cir. June 29, 2011); Amer v. United States, No. 1:06CR118-GHD, 2011 WL 2160553, at *3 (N.D. Miss. May 31, 2011); United States v. Chavarria, Nos. 2:10-CV-191 JVB, 2:08- CR-192, 2011 WL 1336565, at *2-3 (N.D. Ind. Apr. 7, 2011); Marroquin v. United States, No. M-10-156, 2011 WL 488985, at *6 (S.D. Tex. Feb. 4, 2011); United States v. Zhong Lin, No. 3:07-CR-44-H, 2011 WL 197206, at *2-3 (W.D. Ky. Jan. 20, 2011); Luna v. United States, No. 10CV1659 JLS, 2010 WL 4868062, at *3-4 (S.D. Cal. Nov. 23, 2010); Martin v. United States, No. 09-1387, 2010 WL 3463949, at *3 (C.D. Ill. Aug. 25, 2010); United States v. Chaidez, 730 F. Supp. 2d 896, 904 (N.D. Ill. 2010); Al Kokabani v. United States, Nos. 5:06-CR-207-FL, 5:08-CV-177-FL, 2010 WL 3941836, at *6 (E.D.N.C. July 30, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010); Commonwealth v. Clarke, 949 N.E.2d 892, 904, (Mass. 2011); People v. Bennett, 903 N.Y.S.2d 696, 700 (N.Y. Crim. Ct. 2010); Constanza v. State, unpublished, (Aug. 15, 2011) (Hennepin County District Court File No. 27-CR-09-45135) (Because we held in Campos v. State, 798 N.W.2d 565, 568-69 (Minn. App. 2011), review granted (Minn. July 19, 2011), that the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to similarly situated post-conviction petitioners, we reverse and remand.); following Campos v. State, 798 N.W.2d 565, 568-69 (Minn. App. 2011), review granted (Minn. July 19, 2011).

Seventh Circuit

POST CON RELIEF " VEHICLES " CORAM NOBIS
Chaidez v. United States, 655 F.3d 684 (7th Cir. Aug. 23, 2011) (Padilla v. Kentucky announced a new rule of criminal procedure which is not applicable retroactively on collateral review); see United States v. Orocio, 645 F.3d 630 (3d Cir. June 29, 2011) (Padilla simply applied the old Strickland rule, such that it is retroactively applicable on collateral review); United States v. Diaz"Palmerin, 2011 WL 1337326 (N.D.Ill. April 5, 2011) ( Padilla did not announce a new rule); Martin v. United States, 2010 WL 3463949 (C.D.Ill. Aug.25, 2010) (same); United States v. Chavarria, 2011 WL 1336565 (N.D. Ind. April 7, 2011) (same); United States v. Laguna, 2011 WL 1357538 (N.D.Ill. April 11, 2011) (Padilla announced a new rule); United States v. Aceves, 2011 WL 976706, at *3 (D.Hawai'i March 17, 2011) (collecting cases).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE AT PLEA " RETROACTIVITY " PADILLA CONTAINED A NEW RULE WHICH DOES NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW
Chaidez v. United States, 655 F.3d 684 (7th Cir. Aug. 23, 2011) (Padilla v. Kentucky announced a new rule of criminal procedure which is not applicable retroactively on collateral review); see United States v. Orocio, 645 F.3d 630 (3d Cir. June 29, 2011) (Padilla simply applied the old Strickland rule, such that it is retroactively applicable on collateral review); United States v. Diaz"Palmerin, 2011 WL 1337326 (N.D.Ill. April 5, 2011) ( Padilla did not announce a new rule); Martin v. United States, 2010 WL 3463949 (C.D.Ill. Aug.25, 2010) (same); United States v. Chavarria, 2011 WL 1336565 (N.D. Ind. April 7, 2011) (same); United States v. Laguna, 2011 WL 1357538 (N.D.Ill. April 11, 2011) (Padilla announced a new rule); United States v. Aceves, 2011 WL 976706, at *3 (D.Hawai'i March 17, 2011) (collecting cases).

Tenth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY OF PADILLA
United States v. Hong, ___ F.3d ___, 2011 WL 3805763 (10th Cir. Aug. 30, 2011) (Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively: Under Teague, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it is not a new rule, but rather an old rule applied to new facts. A new rule applies only to cases that still are on direct review, unless one of two exceptions applies. In particular, a new rule applies retroactively on collateral review if (1) it is substantive or (2) it is a watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.); Chaidez v. United States, ___ F.3d ___ (7th Cir. Aug. 23, 2011) (same); but see United States v. Orocio, ___ F.3d ___ (3d Cir. June 29, 2011) (Padilla is an extension of Strickland and so applies retroactively to decisions that were final before Padilla was decided).

Other

POST CON RELIEF " GROUNDS " PADILLA
Salazar v. State, 2011 WL 4584938 (Tex. App. Sept. 28, 2011) (defense counsel violated Padilla duty to advise client about certain deportation consequence, and this error was prejudicial, since it would have been rational for the defendant to have taken the case to trial if he had known about the immigration disaster, requiring reversal of the conviction: preserving the clients right to remain in the United States may be more important to the client than any potential jail sentence.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY OF PADILLA " TEXAS
Salazar v. State, __ S.W.3d __, 2011 WL 4056283 (Tex.App. Aug. 31, 2011) (Padilla applies retroactively to cases that have become final, because it applies the 1984 Strickland rule to a new situation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY OF PADILLA
Santos-Sanchez v. United States, ___ F.Supp.3d ___, 2011 WL 3793691 (S.D. TX. Aug. 24, 2011) (in Danforth v. Minnesota, 128 S. Ct. 1029 (2008), the Supreme Court has limited the Teague test to federal collateral review, and Teague does not apply to state court cases; Padilla does not create a new rule, for purposes of barring retroactive application, but applies the 1984 rule of Strickland v. Washington to a new factual context).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY " STATE MANDATED FILING DEADLINE
Commonwealth v. Garcia, No. 1815 MDA 2010, 2011 PA Super. 124, slip op. (Penn. Sup. Ct. Jun. 17, 2011) (Padilla v. Kentucky is not a new constitutional right, and therefore did not excuse failure to file post-conviction relief application within the one-year statute of limitations under Pennnsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. 9545).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " RETROACTIVITY
Commonwealth v. Clarke, 460 Mass. 30, 31, 949 N.E.2d 892 (Jun. 17, 2011) (Padilla is to be applied retroactively on collateral review of guilty pleas obtained after the enactment of IIRAIRA (eff. April 1, 1997); the defendant has made an insufficient showing that had he been properly informed of the immigration consequences of his guilty pleas, there is a reasonable probability that the result of the proceeding would have been different, so the court affirms the denial of his motion for a new trial). NOTE: The court identified IIRAIRA's effective date " Sept. 24, 1996 " as the pivotal point at which deportation became virtually mandatory, based on language in Padilla. There are immigration counsel that would disagree, since (among other things) aggravated felonies have been around since 1988.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA CLAIMS IN STATE COURTS " BIBLIOGRAPHY
Cesar Cuauhtmoc Garca Hernndez , When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions, 12 LOYOLA J. OF PUBLIC INTEREST LAW 299 (2011) (state courts face a steep learning curve thanks to Padilla v. Kentucky).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CERT PETITION FILED IN SCOTUS
The first petition for writ of certiorari based on Padilla v. Kentucky, 130 S.Ct. 1473 (2010), has reached the U.S. Supreme Court. Emmanuel Morris v. Commonwealth of Virginia, No. 11---- (U.S. 2011). The petitioner, Emmanuel Morris, asks the Supreme Court to determine whether Padilla applies retroactively and whether Virginia may impose strict time and custody requirements on post-conviction relief such that individuals like Morris can find no state law mechanism through to raise Padilla claims. The Court has not yet considered whether it will agree to hear this case, but, as with all cases, the chances are slim given that the Court grants approximately one percent of the petitions it receives. No matter what the Court decides to do with Morris, the petition raises important issues that have already been percolating through state and federal courts and will continue to do so. As the petition explains, there is an ever-growing split in federal and state courts about whether Padilla applies retroactively. The petitions count is already outdated because courts continue to decide this issue on what seems to be a weekly basis. The petition also highlights the importance of state post-conviction procedures to potential Padilla claimants. Given that most criminal prosecutions occur in state courts, the procedural remedies and limitations available in these proceedings can make all the difference to someone allegedly denied the Sixth Amendment right to effective assistance of counsel. Morris case is an example of someone whose strong claim of having been denied effective assistance of counsel ran up against state limitations on post-conviction relief. Despite having his 1997 petit larceny conviction vacated by a Virginia lower court, the Virginia Supreme Court overturned that decision on the grounds that Morris did not meet the necessary requirements under state law. The Virginia Supreme Court held that the states writ of coram vobis is available only to correct errors of fact and ineffective assistance of counsel does not constitute an error of fact. Morris argues that the state supreme courts decision leaves him without a procedural mechanism through which to raise his ineffective assistance of counsel claim. In particular, he argues that he could not have met the custody requirement of the states habeas corpus law because he finished serving his year-long sentence long before Padilla was issued (in 1998, a full twelve years before Padilla) and for the same reason could not have met the habeas corpus two-year statute of limitations. Twenty-six states, the petition explains, have a custody requirement.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Neufville v. State, 13 A.3d 607, 614 (RI 2011)(dictum) (defendant with claim of ineffective assistance of counsel, under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), probably cannot show prejudice if the defendant could have received a longer sentence at trial than was actually received by pleading guilty: when counsel has secured a shorter sentence than what the defendant could have received had he gone to trial, the defendant has an almost insurmountable burden to establish prejudice. . . . [The court was] satisfied that had Neufville proceeded to trial, he ran the risk of receiving a longer sentence than was imposed and therefore has failed to establish prejudice because of his counsels alleged ineffective assistance.); citing Rodrigues v. State, 985 A.2d 311, 317 (RI 2009). Note: There is virtually nothing about this decision that is correct. Its language on counsels duty to advise ignores Padillas clear holding that when the immigration consequences are clear, counsel must advise the defendant of them. Obviously, counsel must investigate the clients immigration status and research the immigration consequences before ascertaining whether they are clear. Then, counsel must inform the defendant of the results of his research. As to prejudice, it is true that the possibility of a longer sentence is one factor to use in evaluating prejudice, whether it would have been rational for the defendant to have rejected the plea bargain. For example, in a death penalty case, in which the defendant was offered a plea involving no custody, it would have been insane to reject the plea bargain. On the other hand, many times, counsels failure to make a counteroffer to plead to a non-deportable offense with the same punishment as the original offer would be highly prejudicial. Finally, certain defendants may choose to enter a plea to a greater offense, with a greater maximum, in order to avoid deportation, and it would be highly prejudicial not to try to do so. See People v. Bautista (2004) 115 Cal.App.4th 229, 8 Cal.Rptr. 3d 862.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " STATE COURT DENIALS OF PADILLA CLAIMS
People v. Shao, 2010 WL 3235418, 2010 N.Y. Slip Op. 32113(U) (N.Y. Sup. Ct. 2010) (The defendants assertion that he was never informed of the immigration consequences of pleading guilty is refuted by the record.); People v. Mills, 28 Misc. 3d 1236(A), 2010 WL 3619858, *4 n.6 (N.Y. Crim. Ct. 2010) (explaining that defendant mischaracterizes the trial court record by alleging that his trial counsel advised him that a conviction would have adverse immigration consequences only if he left the country and attempted to re-enter which the reviewing court concluded was contradicted by the trial counsels statements memorialized in the transcript); People v. Valestil, 27 Misc. 3d 1234(A), 2010 WL 2367351, *2 (N.Y. Crim. Ct. 2010) (Defendant again fails to pass the first prong of the Strickland test, in that, there is no credible evidence that Defendants counsel was ineffective.); People v. Robles-Mejia, 27 Misc. 3d 1219(A), 2010 WL 1855762, **7 (N.Y. Sup. Ct. 2010) ([D]efendants averment is completely undermined"if not rendered perjurious"by his attorneys on-the-record statement during the course of the plea proceeding . . . .); People v. Baker, 2010 WL 2175691, 2010 N.Y. Slip Op. 31289(U) (N.Y. Sup. Ct. 2010) (The court finds that the defendants conclusory assertions . . . are both unsupported by any other evidence as well as being contradicted by a court record, namely the plea and sentence minutes, and that there is no reasonable possibility that such allegation is true.); Strozier v. United States, 991 A.2d 778, 788 (D.C. 2010) (explaining that a hearing is not required on an ineffective assistance of counsel claim where the motion is based on palpably incredible claims or a number of other reasons) (quoting Joyner v. United States, 818 A.2d 166, 174 (D.C. 2003)); Gibson v. Commr, 986 A.2d 303, 307 n.2 (Conn. App. Ct. 2010) (noting that the trial court denied certain allegations of ineffective assistance of counsel because [the petitioner] had not presented any credible evidence in support of those allegations.); Hightower v. State, 698 S.E.2d 312, 317 (Ga. 2010) (quoting Robinson v. State, 586 S.E.2d 313 (2003)) (noting that trial courts make credibility determinations regarding claims of ineffective assistance of counsel).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " VIOLATION BY MERELY REFERRING CLIENT TO IMMIGRATION ATTORNEY
People v. Garcia, 907 N.Y.S.2d 398, 400 n.3, 405 (N.Y. Sup. Ct. 2010) (New York trial court found counsel violated the duty to advise under Padilla, where the defendant requested immigration advice, where the defense attorney merely suggested that the defendant speak to an immigration attorney).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA RETROACTIVITY " FLORIDA
The Florida state courts are now split on the question whether Padilla v. Kentucky is retroactively applicable to cases on collateral review. See Flores v. State, 57 So.3d 218, 220 (Fla.App. 4 Dist. Jul 14, 2010); Barrios-Cruz v. State, 2011 WL 2278819 (Fla.App. 2 Dist. Jun 10, 2011); Hernandez v. State, 2011 WL 1262148, (Fla.App. 3 Dist. Apr 6, 2011). The Florida Supreme Court is likely to grant review and resolve the retroactivity question. Thanks to Joe Beeler.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Santos-Sanchez v. United States, 130 S. Ct. 2340 (April, 2010) (Hennepin County District Court File No. 27-CR-09-45135) (vacating Sanchos-Sanchez v. United States, 548 F.3d 327, 331-32 (5th Cir. 2008), which denied coram nobis relief based on a claim that petitioner received ineffective assistance by his counsel's failure to accurately advise him of the immigration consequences of his guilty plea, and remanding the case to the Fifth Circuit for further consideration under Padilla, making Padilla retroactively available to Santos-Sanchez on collateral review); see Santos-Sanchez v. United States, 381 Fed. Appx. 419, 2010 WL 2465080 (5th Cir. June 15, 2010) (on remand from Supreme Court, the Fifth Circuit also applied Padilla retroactively, stated that Padilla abrogated the Fifth Circuits previous holding that defense counsel was not constitutionally obligated to advise Santos-Sanchez of the possible deportation consequences of his plea, and vacated the district court's denial of the petition for a writ of error coram nobis).

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
Oberholzer v. Commission on Judicial Performance, 20 Cal.4th 371, 375, 975 P.2d 663 (May 13, 1999) (Commission on Judicial Performance has authority to issue advisory letters, such letters are a form of discipline, its procedures comport with the requirements of due process of law, and such letters may be based upon a perceived legal error, if such error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty).

CAL POST CON POST CON RELIEF
It is true that the Supreme Court, in Padilla, discussed counsels duty to advise where the immigration law is not clear. In that situation, it stated, more general advice that the plea may trigger deportation or other immigration consequences may suffice. But it is well-established that defense counsel must first conduct a competent investigation before giving such advice, and a competent tactical decision cannot be based on ignorance. As the Supreme Court held in Strickland v. Washington, counsel must, at a minimum, conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent his or her client. There is nothing strategic or tactical about ignorance . . . . As the court stated in Sanders v. Ratelle: [T]he failure to conduct a reasonable investigation constitutes deficient performance. The Third Circuit has held that [i]neffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision could be made. See U.S. v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). A lawyer has a duty to investigate what information . . . potential eye-witnesses possess[], even if he later decide[s] not to put them on the stand. Id. at 712. See also Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th Cir. 1986) (Neglect even to interview available witnesses to a crime simply cannot be ascribed to trial strategy and tactics.; Birt v. Montgomery, 709 F.2d 690, 710 (7th Cir. 1983), cert. denied, 469 U.S. 874 (1984) (Essential to effective representation . . . is the independent duty to investigate and prepare.) Thus, the conviction is invalid where counsel fails to investigate the case in a competent manner, to the defendants prejudice. Counsel cannot be said to have made an informed tactical decision without conducting an adequate investigation. The failure to obtain the advice and assistance of an expert witness can amount to ineffective assistance of counsel under state and federal constitutions, as can the failure to investigate and contact witnesses. Similarly, a plea is invalid if counsel fails to conduct the adequate factual investigation necessary to offer the defendant an informed recommendation concerning the plea.

PADILLA RETROACTIVITY
In state court, post-conviction counsel may confront an argument that Padilla is not retroactive as to pleas that were entered prior to March 31, 2010, the date Padilla was decided. Counsel can still make three arguments: 1. Padilla is an "old" rule; it is an application of the familiar Strickland v. Washington 1984 rules on ineffective assistance of counsel to a new set of facts. Two state courts of last resort (Maryland and Massachusetts) have held that Padilla is "old" and applies retroactively. 2. Counsel can argue that state courts are not bound to follow Teague, which applies only to federal habeas corpus cases. Check out the state retroactivity principles in your state. 3. Finally, counsel can argue that even if Padilla is a new rule, it applies retroactively to similarly situated defendants (those in state collateral proceedings). See Immigration Defense Project, Proposed Amicus Brief, People v. Andrews, available on www.ImmigrantDefenseProject.org.