Scott Greenfield wrote yesterday of the ABA’s forward thinking task force devoted to determining something something something about Padilla v. Kentucky with respect to criminal defense lawyers.  The task force will be headed by a professor, so we have no need to worry that he will be spending valuable client time on this issue.  To be honest, while I’ve read the ABA article a few times, I cannot fathom what this task force will do.  Will it determine if defense attorneys are giving out accurate information? They can ask the few criminal defense attorneys who have some experience in immigration law and we can tell them right away that despite the plethora of information that is out there, the answer is no.  Will it determine if it’s made more work for criminal defense attorneys who would otherwise believe that their only job is to plead clients without telling them what’s at stake? Well, that one is easy too – yes.  For lawyers who weren’t telling their clients that a criminal conviction had consequences, and maybe very serious immigration consequences, this has created a great hardship because now they have to, um, do their job, or risk being declared ineffective (finally). Or, perhaps the ABA just wants to create a task force so people can meet and have donuts and coffee and sigh about how dreadfully difficult it has all become.  Note to the ABA: It was never easy. People just ignored it hoping it would go away. Once the clients did go away (were sent to a far off land) it was, really, out of sight out of mind.  A deported defendant files no post-convictions. Well, now they do. But, I digress.

One of the folks who commented on the Simple Justice post is a man named Rob Roberston with whom I’ve had the pleasure of working on a couple of cases. (it’s a cute name, but his first name isn’t really Rob. I won’t tell what it is unless he gives me express permission)  Rob is a Virginia licensed criminal and immigration attorney.  Right now we are working on some TRO’s in the Eastern District of Virginia, followed by Padilla motions, followed by applications for relief.  Let me say this guy knows of what he speaks.  (the link is to today’s Washington Post that discusses his latest Padilla win, check it out) And, I think that because sorting through the INA and CFR is second nature to him (not to mention the memos, cables and precedent) he says that if an attorney figure out how the Intoxylizer works, she can figure out the immigration laws.  This is a dangerous thing to say because, well, the immigration laws are, as I’ve said over and over again, complex, to say the least.  In speaking with Rob he tells me that what he should have said is that lawyers need to follow what Justice Steven’s said in Padilla, that if it’s obvious you should advise your client as such. 

So what is obvious and where can you find obvious?  Well, interestingly enough, as with many aspects of the law, there are these things called ‘statutes’ and, there are statutory aggravated felonies that are clearly laid out for criminal practicioners.  (scroll down to (a)(43) in the INA it is 101(a)(43)).  They are not as murky as trying to define what may be a crime of violence or a crime involving moral turpitude and see, it’s in the statute.  For example, here’s one you should know by now – a conviction for a theft crime with a sentence greater than 364 days is an aggravated felony meaning your client is subject to removal (remember also, we don’t say ‘deported’ anymore.  You’ll look like a hack if you do.) And, if your client is removed for an aggravated felony THEY CAN NOT COME BACK.  And if they do come back they face increased penalties because they came back after having been removed after an aggravated felony.  (Note, the removal doesn’t have to be BECAUSE of the felony.) If you think you are super awesome because you had that felony theft reduced to a misdemeanor and got your client a one year sentence with all of it suspended you are a fuck up.  Yes, nothing more and nothing less, because there is a statute that you could read that would tell you that your super awesome lawyering skills got him booted from the United States.  The suspended sentence doesn’t matter.  You would have done better by your client if you’d agreed to 364 days in jail.  It would, indeed, make them inadmissible (and you should get an immigration attorney to help you with those distinctions) but it would not royally screw him forever.

Look, there are times when there really won’t be anything we can do for our clients.  I went to a CJA conference where the Padilla presenter was an adjunct professor who was telling us all what we ‘should’ be pleading to, like misprision of a felony. One CJA member raised his hand and said “sure, that would be nice, but most of the time our clients are fucked and then what do we do?”  (I don’t think he said ‘fucked’ but that’s what I heard) The nice professor lady just stared for a minute and then nodded her head that yes, she understood the dilemma and we just had to do the best we could and get the best offers we could.  Duh.

And yes, there are also times where what’s in our client’s best interest in the immigration context is not in their best interest in the criminal context.  I know it’s against our grain to tell our clients it is better for them to serve time in jail than to get a suspended sentence, or that it’s actually better to take a straight guilty plea on a misdemeanor with jail time than to take probation before judgment after entering a plea on a felony since in the criminal arena that PBJ means your client has no record, but in the immigration world it’s as good as guilty.  In cases like these it makes sense to have an immigration attorney friend who will tell you how to approach your client with the news, and might even sit with you while you go over it.  As Rob said, he’s not the only one giving the milk away for free, I do it regularly and most immigration lawyers I know are more than happy to help out. It would be nice if you’d all take my advice and include your friend’s consult fee in your retainer agreement (I’m gonna keep harping on that until you all listen) but it’s okay if you don’t find value in our work, even if it keeps the post-conviction hounds away from your office door.

Fret not, dear reader.  This longer than normal post ends with some helpful advice.  The New York State Immigrant Defense Project is an invaluable resource, my friend.  It is created for criminal attorneys and should be used as a starting point when representing non-citizen clients.  It has charts and graphs and all sorts of practice pointers.  They are even available to talk to on the phone if you have questions (I shit you not, they call you back and talk to you about this stuff for free).  Use them, use your friends who know about immigration law.  I don’t know that the ABA’s task force is going to make anyone’s job easier.  The only folks who can do that are the people who created the convoluted and unnecessarily harsh immigration laws in the first place.