Case o' The Week: Critical for the Defense, "Collateral" for a Court? -- Delgado-Ramos, Immigration advisements, and Rule 11

Assume a defendant isn't warned of serious immigration consequences before he or she enters a plea of guilt. If it is the defense attorney who fails to advise his client, that failure is called "ineffective assistance of counsel." Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

And if the district court fails to advise the same client, of the same immigration consequences, before the same guilty plea? Then these immigration ramifications are transformed into mere "collateral consequences" of a plea and there is no error, apparently. United States v. Delgado-Ramos,__ F.3d __, 2011 WL 1312778 (9th Cir. April 7, 2011), decision available here.

Players: Per curiam decision by Judges Rymer, Callahan, and Ikuta.

Facts: Delgado-Ramos entered an open guilty plea to illegal reentry before the Supreme Court’s decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Id. at *1. (Padilla is the important new decision holding that defense counsel was ineffective when he or she failed to advise the client of the immigration consequences of a conviction). While taking the plea, the district court did not advise Delgado-Ramos of the immigration consequences of the conviction. Id.

Issue(s): “Jose Delgado–Ramos appeals his conviction for attempted entry after deportation, see 8 U.S.C. § 1326(a)-(b), on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy.” Id. at *1. “In United States v. Amador–Leal, 276 F.3d 511 (9th Cir.2002), we held that Rule 11 and due process do not require a district court to inform a defendant of the immigration consequences of his plea . . . Delgado argues, however, that the Supreme Court's recent decision in Padilla ‘casts doubt’ on the continued force of Amador–Leal and requests that we remand this case to the district court so that he ‘can plead anew.’” Id.

Held: “For a three-judge panel to hold that an intervening Supreme Court decision has ‘effectively overruled’ circuit precedent, the intervening decision must do more than simply ‘cast doubt’ on our precedent. Rather, it must ‘undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). That high standard is not met here.” Id. at *1. “While Padilla's holding is directly applicable to our Sixth Amendment analysis in Fry, it sheds no light on the obligations a district court may have under Rule 11 and due process. Accordingly, we cannot say that Padilla ‘undercut[s] the theory or reasoning underlying’ our decision in Amador–Leal ‘in such a way that the cases are clearly irreconcilable.’” See Miller, 335 F.3d at 900. Because Amador–Leal remains the law of the circuit, the district court did not err in failing to advise Delgado of the immigration consequences of his plea.” Id. at *3.

Of Note: The panel in Delgado-Ramos goes to great lengths to distinguish Padilla, emphasizing that here the challenge is a Due Process / Rule 11 claim about the validity of a plea of guilt, and in Padilla it was a claim of ineffective assistance of counsel. Id. at *1.

With all respect, the distinction is unpersuasive.

In a nutshell, the panel relies on old case law that excused plea colloquies that did not advise of “collateral consequences.” Id. at *2. No fair reading of Padilla can leave one with the impression that immigration consequences remain “collateral,” anymore.

In the panel’s defense, a three-judge panel has to be chary about finding that intervening Supreme Court precedent has abrogated previous Ninth authority – but the opinion could have more openly conceded how pervasively Padilla has eroded the rationale underlying Ninth Circuit law. Delgado-Ramos in ripe for review, and the Ninth should take this opportunity to take the case en banc, ditch its old Rule 11 law, and get its authority in line with Padilla.

How to Use: It is hard to imagine how the holding of Delgado-Ramos could survive en banc or Supreme Court review. If you have this issue, bring it: this three-judge decision does not close the debate. Unfortunately, to really have the issue on appeal one would have to stay mum at the plea and let the district court forget to advise the client (otherwise, it is an easy error to fix by the district court judge). This failure to object leads to plain error review, and to survive the Olano analysis will be tricky business (particularly when defense counsel should always be giving Padilla advisements in any event, fatally undermining the necessary prejudice showing). Interesting, though, to think how a corrected Delgado-Ramos decision could be used in a habeas corpus challenge to a prior, or a writ of coram nobis.

For Further Reading: Those heartless Feds are going to deport your poor alien client, while relying on completely indecipherable immigration law - shouldn’t they at least give defense counsel a basic "crimigration" primer so you can give the client meaningful Padilla advisements before the plea?

They have – and it is a very useful resource. See Monograph here.


Image of Customs agent from http://www.ehow.com/info_8083203_laws-immigration.html


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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