Sunday, August 16, 2015

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 "Buck Stops here" from 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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