Case o' The Week: No CYA for INA & COP -- Rodriguez-Vega and Padilla Immigration Advisements for Guilty Pleas
But the R.A.P. is child’s
play, compared to the I.N.A..
United States v. Rodriguez-Vega, No. 13-56415 (9th Cir. Aug. 14, 2015), decision available
here.
Players:
Decision by Judge Reinhardt, joined by Judges Fernandez and Clifton. Big win
for A.F.D. Doug Keller, Federal Defenders of San Diego, Inc.
Facts: Born in Mexico, Rodriguez-Vega came to the United States and became an LPR at 13. Id. In her twenties she was charged with
felony Attempted Transportation of Illegal Aliens and Aiding and Abetting. Id.
She plead guilty to misdemeanor
charges, with a plea agreement that warned that the convictions “may” have
immigration consequences. Id. at 5-6.
At the sentencing hearing, defense counsel stated that there was a “high probability”
that Rodriguez-Vega would be deported, and that the conviction was “probably”
considered an agg felony for purposes of immigration law. Id.
Rodriguez-Vega was promptly issued an immigration Notice to
Appear, alleging she was removable because her conviction qualified as an agg
felony. Id. Her habeas petition alleging IAC
was denied. Id. at 6.
Issue(s): “[Rodriguez-Vega] asserts that she was deprived of
effective assistance of counsel because her attorney failed to advise her that
her plea agreement rendered her removal a virtual certainty, and that the court
erred in dismissing her petition without holding an evidentiary hearing.” Id. at 4.
Held: “We hold that
the district court . . . did err in failing to hold that under the controlling
law Rodriguez-Vega’s counsel’s assistance was ineffective . . . , [W] e order
the conviction vacated.” Id. “[W]e
hold that Rodriguez-Vega’s counsel was required to advise her that her
conviction rendered her removal virtually certain, or words to that effect.” Id. at 9 (emphasis added).
“According to counsel’s own
declaration, before Rodriguez-Vega pled guilty he never informed her that she
faced anything more than the mere ‘potential’ of removal. Because the
immigration consequences of her plea were clear and her removal was virtually
certain, we hold counsel’s performance constitutionally ineffective.”
Id. at 11.
This is a “buck stops
here” decision, and Judge Reinhardt makes it clear that the buck stops on defense counsel’s desk.
How to Use:
Rodriguez-Vega plead guilty to misdemeanors.
We worry about agg felonies. Yet the
statute “expressly identifies Rodriguez-Vega’s [misdemeanor] conviction as a ground for removal.” Id. at 8.
Judge Reinhardt views the
immigration law as “succinct, clear, and explicit;” it means removal is “virtually
certain.” A criminal defense attorney
slogging through the INA provisions at page 8 of the decision may wonder if it
is as clear as the Court assures. Moreover, if you misadvise a client that
removal for a lesser charge is “virtually certain” – and it wasn’t – and your client then gets
hammered after a hopeless trial based on that advice, an equally valid IAC
claim awaits.
Read Rodriguez-Vega
and you’ll ache for some good advice from a solid immigration attorney. The National Immigrant Justice Center is
a great start – a welcome resource for CJA counsel. See "Defender Initiative" here.
For Further
Reading: You’ve read the terrific decision by
Judge Koh, requiring probable cause for historical cell site location data. See blog here.
Since her decision, the Fourth Circuit has weighed in, in Graham. See decision here.
Supreme Court bound? Professor Kerr thinks maybe. See article here.
Image
of trap from http://www.thefinancialcoach.co.za/wp-content/uploads/2015/01/Self-Insurance-Trap-e1397769075987.jpg
Image of "Buck Stops here" from http://www.historycompany.com/productimages/01755_full.jpg
Steven
Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
Labels: IAC, Immigration, Padilla, Plea Agreements, Reinhardt
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