Padilla v. Kentucky Requires Criminal Lawyers to Give Immigration Advice

The recent Supreme Court decision in Padilla v. Kentucky greatly increases the criminal defense attorney’s responsibility to provide effective assistance of counsel. It’s a sea change from defense counsel’s previous minimal obligation under Tex. Code Crim. Proc. Article 26.13(a)(4) to merely advise a defendant that a guilty plea might result in adverse immigration consequences. The Court explicitly rejected the view that only defense counsel’s misadvice concerning the immigration consequences of a conviction will rise to the level of  an ineffective assistance of counsel claim.  The Department of Justice's Immigration Law Advisor asserted that:

The Padilla ruling immediately affects criminal defense attorneys and their alien clients. All criminal defense attorneys now have the affirmative duty to research and advise on the consequences of a given plea, or they will risk an ineffective assistance of counsel claim.
In my opinion, Justices Alito and Chief Justice Roberts were more realistic about the slim prospect of  criminal defense lawyers providing “expert” advice about an area of law outside their expertise and an area of law which some have termed only second to tax law in complexity. Nevertheless, when the consequences are “succinct and explicit” the criminal defense lawyer now must render correct legal advice concerning the immigration consequences of a particular plea. In Austin, Texas and elsewhere in the Southwest the demographics insure that the criminal defense lawyer will increasingly face the prospect of  advising clients what effect a guilty plea will have upon their immigration status

The Padilla ruling immediately affects criminal defense attorneys and their alien clients. All criminal defense attorneys now have the affirmative duty to research and advise on the consequences of a given plea, or they will risk an ineffective assistance of counsel claim.

In my opinion, Justices Alito and Chief Justice Roberts were more realistic about the slim prospect of  criminal defense lawyers providing “expert” advice about an area of law outside their expertise and an area of law which some have termed only second to tax law in complexity. Nevertheless, when the consequences are “succinct and explicit” the criminal defense lawyer now must render correct legal advice concerning the immigration consequences of a particular plea. In Austin, Texas and elsewhere in the Southwest the demographics insure that the criminal defense lawyer will increasingly face the prospect of  advising clients what effect a guilty plea will have upon their immigration status.

A criminal conviction can entail a number of adverse immigration consequences aside from removal-namely the effect upon naturalization, ability to obtain a visa, etc.Padilla however dealt with the consequences of a criminal conviction upon the “removal” provisions of the Immigration and Nationality Act. As Padilla pointed out, the removal provisions in many cases have a greater impact upon a criminal defendant than the actual punishment for the commission of the criminal offense.

Removal Based Upon Criminal Conviction:

The Department of Justice’s excellent reference guide “Immigration Consequences of Criminal Convictions: Padilla v. Kentucky” points out that the:

The INA separates removal grounds into two categories: inadmissibility grounds codified at 8 U.S.C. § 1182(a) and deportability grounds codified at 8 U.S.C. § 1227(a). Both inadmissible and deportable aliens are referred to as “removable” aliens. The question of which category applies turns on whether the alien has been admitted to the United States, i.e., whether the alien has made a lawful entry after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). An alien who has not been admitted to the United States is subject to removal based on one or more grounds of inadmissibility.” Therefore, the person’s status in this country determines whether he/she will be “deportable” or “inadmissible.

Generally speaking, Lawful Permanent Resident’s are subject to deportability. (although a Lawful Permanent Resident can also be subject to grounds of inadmissibility). All others are subject to removal on grounds of inadmissibility. 
Different criminal conviction grounds exist for inadmissibility and deportability. A good quick guide along with other information pertaining to the immigration consequences of criminal convictions is available through The Immigrant Defense Project.

Fourth Amendment Nuance Worth Consideration

While conducting research for a motion to suppress evidence  as a violation of Terry v. Ohio,  I discovered some caselaw concerning what is termed  “the collective knowledge doctrine.”  Terry v. Ohio, of course, allows a police officer to conduct a limited  investigative detention when supported by reasonable suspicion. Terry will be discussed  in the coming Texas legislative session because it provides the Fourth Amendment muscle for a number of  proposed bills that parrot Arizona’s attempt to detain individuals to check their immigration status.

The “collective knowledge or imputed knowledge” doctrine refers to imputing knowledge of facts essential to a determination of reasonable suspicion or probable cause from one law enforcement source to the actual officer conducting the detention or arrest. The justification for the rule lies in the fact that “the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates”.  United States v. Colon, 250 F.3d 130 (2nd Cir. 2001).

OK, that’s interesting. What do you do with that? Well, here’s the important and often overlooked point. When a civilian employee of a police department gets stuck in the chain of information, an officer conducting the detention cannot ordinarily rely upon “imputed knowledge” from the civilian employee. Only if the "civilian" is trained in making a "reasonable suspicion" determination can “reasonable suspicion” be imputed to a detaining officer from a non-law enforcement source. This of course can render reasonable suspicion or probable cause insufficient and invalidate a search or seizure under the Fourth Amendment. This nuance undoubtedly gets overlooked and detentions or arrests that involve non-law enforcement personnel in the chain of information pass muster when perhaps they should not.

For instance, in the Colon case  a presumably anonymous caller reported to a civilian 911 operator that a man in a bar had a gun. A police dispatcher received that information as did the officer ultimately making the investigative detention. What did not get transmitted was the fact that the caller gave additional information from which one could conclude that the “anonymous” caller was in fact identifiable. The Court found the detention invalid under Florida v. J.L., 529 U.S. 266,  120 S.Ct. 1375, 146 L.Ed. 2d 254 (2000) (anonymous tip concerning man with a gun without more insufficient to establish reasonable suspicion) because the information concerning the caller’s identity (known to the civilian 911 operator but not the police dispatcher nor the detaining officer) could not be imputed to the actual officer making the detention. Had everyone involved in the chain of information possessed police credentials, knowledge of the caller’s identity could have been imputed to the officer conducting the detention. It might be helpful in situations where "reasonable suspicion" depends on collective information to ask who is making the reasonable suspicion determination.

Under Terry, the police must make the determination. Likewise, imputed information essential to a reasonable suspicion determination must originate with a “police” source or evidence must exist that the civilian police employee received training in determining reasonable suspicion.  An untrained civilian source or a record that fails to show a properly trained civilian jeopardizes the legality of the detention. 

Return of Seized Property Under the Texas Code of Criminal Procedure

 

 In  Alvarez v. Smith, ___ U.S. ___,130 S.Ct. 576, 175 L.Ed.2d 447 (2009) the US Supreme Court avoided resolution of the question of how long law enforcement can seize property absent a neutral determination of probable cause for the seizure.  The Court found the issue moot because the underlying property dispute had been resolved.  On a number of occasions I’ve dealt with issues concerning the return of seized property.  In this post I’ll attempt to provide a little insight and a little law about the return of property seized by the police when no forfeiture proceeding has been instituted.

After surveying Texas law on the issue, two things stand out.  1. courts are loathe to get involved in anything that might interfere with a pending criminal matter, be it an actual charge or simply an investigation and 2) statutory relief for the return of seized property exists in limited circumstances under Tex. Code Crim. Pro.  Article 18, when a search warrant results in a seizure and under Article’s 47.01a (when there is no pending criminal action regarding allegedly “stolen property”) and Article 47.02. (post-trial return of allegedly “stolen property”).

Proceedings under Tex. Code Crim. Proc. Art. 47 exclusively involve the return of “allegedly stolen” property but “only if the ownership of the property is contested or disputed”. Judges-district, county, JP or municipal judges, acting as “magistrates”, preside over these hearings. The code provisions do not discuss what constitutes an “allegation” of stolen property-is it merely the officer’s oral statement to the court, or a filing of some sort? This defect invites an attempt to quash the proceeding upon the ground that the state has failed to make a facial showing concerning the “stolen” nature of the property. In any event, remember that a proceeding under Art. 47 is a civil proceeding and your client can be called to testify concerning “ownership”. Obviously, anytime your client can be questioned under oath a potential for great harm exists. Think of Martha Stewart’s unraveling. Before I permit a client to testify concerning ownership of property alleged to be stolen, I’d want to be certain of his or her lack of culpability. Such a high burden of proof might require your client to abandon his effort altogether to recover the property.

At least one appellate court in Texas has recognized the existence of a statutory remedy for the return of property seized under a search warrant. In In re Cornyn, 27 SW3d 327 (1stDist.-Houston 2000) the First Court of Appeals identified Articles 18.12 & 18.13 as providing a remedy for both pre-arrest and post-arrest property seizures. According to In re Cornyn, in a search warrant case you can attempt to recover the property in the court that issued the warrant. At least you have a forum, though it’s the court that issued the warrant.

Texas law lacks a statutory counterpart to Federal Rule of Criminal Procedure Rule 41(g) which provides a remedy in Federal cases for the return of seized property in both search warrant and warrantless arrest cases. Rule 41(g) authorizes a hearing concerning the legality of the property seizure in the district in which the property seizure occurred.

A few essential principles emerge from the cases interpreting Rule 41(g). Even though these cases have no direct application under state law they are instructive because they provide numerous factual examples of efforts to return property and the application of legal principles involved.

The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have been terminated; a request for return of seized property is essentially a civil equitable proceeding but the person seeking return of the property must be prepared to show they are lawfully entitled to possess it. The “owner” bears the burden of proving entitlement.

Aside from the previously mentioned statutory remedies, the common law remedy of replevin, an action under Section 1983 or a hearing on a motion to suppress evidence are the remaining available remedies for the return of seized property.

Attempts to recover property post-trial where no allegation exists that it is contraband, stolen or an instrumentality of a criminal offense, are less problematic. Items seized in connection with a criminal case are often released upon the conclusion of the case. The return of such property can usually be accomplished with a court order or a letter from the prosecutor.

To recap-there are limited statutory opportunities to get property returned-think search warrants and stolen property. Aside from that, maybe a motion to suppress or the filing of an original civil action. Watch out though, because your client will be expected to testify.