What’s Good for the Goose Is Not Always Good for the Gander
Counsel’s duty in representing noncitizen defendants in criminal court.
By Javier Rivera
It’s 8 a.m. and the Harris County criminal court system is bustling with action. Scores of defendants, attorneys, and court staff flood into the building in anticipation of morning docket call. In one of the most diverse counties in the U.S., a growing number of these individuals are foreign born and residing locally under a spectrum of immigration statuses. With the increased global presence in criminal court systems throughout Texas it is critical for criminal defense attorneys to investigate the immigration status of their clients and the criminal consequences of proposed pleas.1
The U.S. Supreme Court: Strickland to Chaidez
The U.S. Supreme Court, in Strickland v. Washington, established a bright line test for determining the constitutionality of a plea, when a criminal defendant is represented by counsel.2 Strickland determined what constituted ineffective assistance of counsel by conducting a two-part inquiry: 1) Did the representation fall below an objective standard of reasonableness, and 2) Was the defendant prejudiced as a result of the deficiency—but for counsel’s unprofessional errors, the result of the proceeding would have been different.3
In 2010, the U.S. Supreme Court acknowledged that a noncitizen criminal defendant has the right under the Sixth Amendment to be properly informed of the immigration consequences of a criminal conviction before entering into a plea agreement.4 In Padilla v. Kentucky, the Supreme Court held that immigration penalties are so intimately tied to the criminal court process that defendants have a constitutional right to competent advice from counsel regarding the specific immigration consequences of their pleas and convictions. To satisfy their duty to affirmatively and competently advise clients, counsel must have some knowledge about immigration law or consult with someone who does. By acknowledging the unique interconnectedness of the immigration and criminal justice systems, Padilla clarified preexisting rights of noncitizen defendants and the duties owed to them by counsel. In Padilla, the Supreme Court cited the Strickland test stating that assistance of counsel is only effective if counsel provides legal advice and advocacy regarding the immigration consequences of a client’s guilty plea. It is not enough for attorneys to inform defendants of potential consequences. To provide effective assistance, counsel should also try to negotiate for a disposition that will not result in deportation or other adverse immigration effects.
While Padilla recognized the constitutional right to competent advice, Chaidez v. United States5 placed limitations on it. Chaidez held that the ruling in Padilla does not apply to pleas entered prior to March 31, 2010.6 Chaidez concludes that Padilla “br[oke] new ground” by holding that the Sixth Amendment requires counsel to advise his or her client about immigration consequences—a “collateral consequence”—of conviction.7
Texas Criminal Courts: Immigration Admonishments
The Texas Criminal Code has had somewhat of a jump on other states by codifying protections for noncitizens. Prior to Padilla, the Texas Legislature statutorily required trial courts to admonish defendants pleading guilty to a felony, after June 13, 1985, that their plea might result in deportation.8
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
[...] (4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.9
However, this required judicial
admonishment was not obligatory for persons charged with
misdemeanors, and Texas courts have never held that such
judicial admonishments were constitutionally required.10
While Texas has taken affirmative steps to provide judicial admonishments, this in no way is a substitute for advice of counsel.11 Courts have emphasized that it is “counsel’s duty, not the court’s, to warn of certain immigration consequences,” and that “[w]arnings from a judge during a plea colloquy are not a substitute for effective assistance of counsel, and therefore have no bearing on the first Strickland prong.”12 Nevertheless, judicial admonishments are relevant to the second Strickland prong in determining whether a defendant was prejudiced by counsel’s error.13 Thus, judicial admonishments will not completely exonerate defense counsel’s ineffectiveness, but they are an important factor that a court may consider in the totality of the circumstances prejudice analysis.14
In 2016, the Texas Court of Criminal Appeals issued a published decision, in Ex Parte Torres, detailing a criminal defense attorney’s duty to properly advise a noncitizen defendant on immigration-related consequences of a guilty plea.15 Torres also provided important insight on what constitutes ineffective assistance under the Strickland test. Torres concerned a Texas Code of Criminal Procedure Article 11.072 application for a post-conviction writ of habeas corpus. Specifically, the defendant challenged his conviction claiming that his trial attorney was ineffective in providing him with accurate advice about the immigration consequences of pleading guilty.16
During the habeas proceeding, the defendant’s trial counsel indicated that he had reviewed the plea papers with Manuel Torres, including that portion of the plea that stated, “If you are not a citizen of the United States, by pleading guilty or nolo contendere to this offense, you may be deported, excluded from future admission into the United States or denied naturalization under federal law.” On cross-examination by habeas counsel, trial counsel acknowledged that he had never independently reviewed the Immigration and Nationality Act to determine whether the offenses to which the appellant was pleading guilty were deportable offenses, and he further conceded that he did not know what constituted a deportable offense under the act, other than what he had learned at legal seminars. Counsel acknowledged that, although he had advised Torres that he could be deported as a result of his guilty plea, he did not affirmatively tell Torres that he would be deported because, in his experience, a person can sometimes plead guilty to an aggravated felony and never actually be deported.
In reviewing the advice of the trial counsel, the Texas Court of Criminal Appeals found counsel failed to adequately advise appellant regarding the “presumptively mandatory” deportation consequence of his plea of guilty, in violation of counsel’s duties under Padilla. While counsel did advise Torres that a plea of guilt could lead to deportation, the court reasoned that counsel’s advice failed to adequately warn appellant of the gravity of the deportation consequences of his guilty plea that made him “subject to automatic deportation.”17 Yet, the court still did not find for Torres because it concluded that he failed to meet the second Strickland test factor of prejudice and upheld his plea. Since 2016, Torres and its adoption of Padilla’s prejudice standard18 has been cited over 50 times by Texas criminal courts. Despite Torres’ heavy citation, courts have rarely found that the misadvice by defense counsels resulted in actual prejudice under the second Strickland prong.
However, in a recent published case, the Court of Criminal Appeals in Ex Parte Aguilar did find prejudice and expanded Torres to cover advisals on a plea that would lead to automatic loss of lawful immigration status.19 In Aguilar, counsel consulted an immigration attorney regarding the consequences of a guilty plea on his client’s immigration status and received clear directives. Counsel then negotiated a plea agreement that he believed comported with the advice of the immigration attorney. Unfortunately, it did not, and Cristian Aguilar’s plea resulted in the revocation of his immigration status. The Court of Criminal Appeals vacated Aguilar’s plea stating, “when a criminal defense attorney is advised by an immigration attorney and correctly relies on that advice, the advice and immigration-law knowledge is imputed on the criminal defense attorney and his performance is evaluated in light of that expertise.”20 The court found prejudice in Aguilar as the defense counsel took the time to seek the opinion of an immigration attorney, was advised, and despite the correct advice still incorrectly advised his client, resulting in loss of immigration status.
After the precedential decisions in Torres and Aguilar, it appears that Texas courts have essentially swallowed Padilla, while simultaneously raising the bar for establishing what constitutes adequate advice on immigration consequences and prejudice under Strickland. This could be a difficult pill to swallow for both criminal defendants seeking habeas relief for alleged unconstitutional criminal pleas and criminal defense counsels fighting ineffective claims.
1) A criminal defense attorney has a duty to investigate his or her client’s immigration status and facts surrounding the client’s case.
2) When an immigration statute relevant to a defendant’s case is succinct, clear, and explicit in defining the removal consequence for his or her conviction, advisals as to mandatory deportation or loss of immigration status must be provided.
3) When the immigration statute relevant to a defendant’s case is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.
4) A criminal court can render a decision with which a defense counsel is ineffective however still find that Strickland prejudice is not met.
The moral to this story: Do your homework. Know your client and seek help when necessary. Your license and your client’s liberty are too valuable not to do so.TBJ
is an attorney for McChesney, Curtright & Armendáriz in Houston. He is certified in immigration and nationality law by the Texas Board of Legal Specialization and serves as the vice-chair of the State Bar of Texas Laws Related to Immigration and Nationality Committee.