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< Back to current issue of Immigration Daily

Bloggings on Deportation And Removal

by Matthew Kolken

Supreme Court Reaffirms Right to Competent Counsel During Plea Negotiations

The United States Supreme Court has issued two decisions (Missouri v. Fry, and Lafler v. Cooper) that reaffirm the constitutionally protected right to effective assistance of counsel in the criminal context during plea negotiations.

Both cases cite Padilla v. Kentucky, where the Court ruled that an attorney must inform their non-citizen client of the risk of deportation for consideration in taking a criminal plea, or the plea will be rendered constitutionally deficient.  

In Missouri v. Fry the Court held that: "The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.” No. 10–444. Decided March 21, 2012.

In Lafler v. Cooper the Court held that: "Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed." No. 10–209. Decided March 21, 2012.

We are coming up on the two-year anniversary of the Court's decision decision in Padilla v. Kentucky (March 31, 2010).  Since the decision, there has been a split in the Circuits over whether the Court's ruling applies retroactively.  

The Court addresses retroactivity in Lafler stating that the decision will not open the "floodgates to litigation," that the system will not be "overwhelmed," and that defendants will not receive "windfalls" as a result of the decision citing Padilla.

The Tenth Circuit and Seventh Circuit have ruled that Padilla doers not apply retroactively.

The Third Circuit has ruled that Padilla does apply retroactively.

Due to the fact that the Court's most recent decisions prominently cite Padilla, I think it is safe to say that the Court will ultimately clarify their position by finding that a non-citizen has a guaranteed right to effective assistance of counsel during plea negotiation, and that a constitutional violation cannot stand regardless of when it occurred.

What I find amazing is the length that certain Courts will go to undermine a non-citizen's Constitutionally protected right to counsel.

Obama Administration Seeking to Destroy Another Gay Couple Through Deportation

NBC news reports that the Obama administration is unwilling to recognize the validity of the marriage of Brian Willingham and Alfonso Garcia, by continuing to enforce the Defense of Marriage Act (DOMA).

The couple has been together for ten years, marrying last August in the State of New York where same sex marriages are legally recognized.  Apparently, they aren't recognized in the White House.

A routine traffic stop has resulted in the institution of removal proceedings against Alfonso.  An immigration court hearing is scheduled this afternoonin in San Francisco.

Now that this case is receiving press coverage I'm sure that the administration will make Alfonso one of the lucky 1%ers to qualify for a favorable exercise of prosecutorial discretion.

Nothing like bad press in an election year.


About The Author

Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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