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Immigration Consequences – When “Maybe” Is Ineffective Assistance of Counsel

Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

In October the Court of Special Appeals raised a red flag to all attorneys representing noncitizens in criminal matters and imposed a stringent standard of providing accurate and unequivocal advice regarding the immigration consequences of a criminal conviction. The CSA first held that the trial court erred in finding that Prado waived his right to assert his coram nobis claim and then addressed the merits of his claim.

A review of the factual record summarized in the Prado opinion is instructive in alerting us where counsel can go wrong in client discussions regarding immigration consequences for a non-citizen client facing criminal charges.

In Prado v. State, (Md. Ct. Spec. App. Oct. 2, 2015) — A.3d — 2015 WL 5771852, Prado was convicted of second degree child abuse by way of a not guilty statement of facts. While conducting the required inquiry the trial court asked Prado’s attorney to “advise Mr. Prado of the rights that he is waiving by proceeding” with an agreed statement of facts. Prado’s attorney then asked Prado to confirm that the two of them had “discussions with respect to [his] immigration status,” to which Prado responded, “Yes, sir.” Prado’s attorney further remarked that neither he nor the judge was “making any promises about what the federal government could possibly do in the future with respect to reviewing this conviction.” Prado acknowledged this. At the coram nobis hearing in this case, Prado’s trial counsel testified, and the trial court found as a fact, that Prado’s attorney met with Prado at the Baltimore County Detention Center before trial and explained the immigration consequences of a guilty verdict, including that the charge was a “deportable offense,” that Prado “could be deported … if the government chose to initiate deportation proceedings,” and that it was “possible'” that Prado “would be deported.” Prado testified that his counsel never told him he “would be deported,” but acknowledged that he did have a conversation with trial counsel regarding his immigration status.

The CSA reviewed the factual record with respect to the advice provided by Prado’s counsel concerning the immigration consequences of a conviction for second degree child abuse. The CSA found that the current immigration law made Prado’s deportation certain as a consequence of the conviction of second degree child abuse. Thus, the failure of Prado’s trial counsel to advise him that the immigration consequences were anything less than certain was misleading and inaccurate advice that constituted ineffective assistance of counsel.

The Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 363-64 (2010) emphasized that it is now “quintessentially the duty of counsel to provide [a] client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.'” (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985)); Strickland v. Washington, 466 U.S. 668 (1984)).

The CSA held that advising a client about immigration consequences requires informing him that a conviction renders him “deportable.” It is sufficient to explain that a conviction results in action by I.C.E. that would place the individual into immigration proceedings. Statements that qualify “deportable,” such as “possibly deportable” or “may be deportable,” are inadequate advice as to immigration consequences because they suggest the discretion of the federal government in initiating immigration proceedings against a convicted non-citizen, which a trial attorney is in no position to determine.

The Padilla Court highlights that, under current immigration law, “if a non-citizen has committed a removable offense … his removal is practically inevitable.” 559 U.S. at 363–64. Thus, if the defendant committed a deportable crime, he is, at the moment of conviction, automatically deportable. Any subsequent discretion the federal government may exercise in pursuing immigration proceedings or any defenses the client may have against deportation are not pertinent. The likelihood of deportation is relevant if and when deportation proceedings begin. Therefore, in order to unequivocally inform a client of the immigration consequences of a conviction, a trial attorney need only tell his client that he is “deportable” without qualification. This is especially important when a defendant accepts a plea bargain. As explained in Padilla “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.” 559 U.S. at 373.

Prado makes it essential that when representing a non-citizen, defense counsel should consult with immigration counsel if defense counsel is not competent to offer specific immigration consequence advice to the client. Generalized advice is not sufficient.

While the CSA found that the advice provided by Prado’s trial counsel constituted ineffective assistance of counsel, Prado’s journey on the path to a new trial is not over. The CSA noted that the Strickland standard is a two-prong analysis. Prado must still meet his coram nobis burden as to prong two which requires the trial court to find that there is a reasonable probability that, but for trial counsel’s unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 694.

In summary, trial counsel has a duty to be clear, specific and correct in the advice given to a non-citizen as to the immigration consequences of a conviction. A “best guess,” the “likelihood,” or a “possibility” is not competent legal advice. Unless trial counsel is fully conversant with the immigration consequences, one must consult with immigration counsel or tell the client that he needs to consult with immigration counsel.

As we know, there are instances, not uncommon, where even though the immigration consequences are clear and certain, the client will still plead guilty because the facts afford no reasonable likelihood of success after trial. The only issue is deportation “sooner or later” and the efforts of criminal counsel are then limited to minimize the direct consequences of the conviction, i.e. the length of the sentence. In Prado it may be that the evidence against him was compelling and that even with deportation, a plea agreement that minimizes incarceration before deportation is still a “good deal.”

Prado also explained that the defendant did not waive his coram nobis claim based on allegations of ineffective assistance of counsel by failing to appeal his conviction or by failing to petition for post-conviction relief. The CSA found that the trial court’s finding of waiver was contrary to the provisions of Md.Code (2002, 2012 Repl.Vol.), § 8–401 of the Criminal Procedure Article (“CP”) which states: “The failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of error coram nobis.” It further noted that trial court did not cite nor rely on this statute in ruling that Prado waived his coram nobis claim. A year after the trial court’s denial of Prado’s coram nobis petition, the Court of Appeals decided State v. Smith, ––– Md. ––––, No. 47, September Term, 2014 (July 13, 2015). In Smith, the Court of Appeals applied CP § 8–401 to similar facts and held that the Smith did not waive her coram nobis claim by failing to appeal her conviction or file a petition for post-conviction relief, a holding that explicitly contradicts the trial court’s waiver ruling in Prado’s case.

The trial court, upon remand, will be charged with the responsibility of determining whether Prado can meet the second prong of Strickland. If Prado meets his burden, then he will be granted a new trial. The second prong is often a challenge where the evidence of culpability is significant. When the client has to answer questions as to whether he would have proceeded to trial and forced the State to prove its case and where the risk of losing at trial was clearly substantially greater than the plea offer on the table, the trial court will frequently reject testimony that the client would have truly elected for a trial and faced significantly increased incarceration to avoid immigration consequences.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney