Case o' The Week: No CYA for INA & COP -- Rodriguez-Vega and Padilla Immigration Advisements for Guilty Pleas

   The Rule Against Perpetuities, we are warned, is a trap for the unwary.

  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.

Of Note: The Court squarely rejects the government’s arguments that Rodriguez-Vega might avoid removal under the “family member exception” for first time offenders, or receive withholding of removal, or qualify for relief under the Convention against Torture. Id. at 9. Equally irrelevant were the general immigration advisements in the government’s plea agreement and the court’s plea colloquy. Id. 

 

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

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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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