Ruling Leaves Immigrants With No Real Remedy

New York Law Journal

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New York State's highest court recently ruled that judges must warn all non-citizen defendants prior to pleading guilty to a felony that doing so may result in deportation ("Courts Must Warn of Plea Deportation Result," NYLJ, Nov. 20, 2013).

While some may applaud this decision as yet another measure to safeguard the rights of non-citizens, as an immigration attorney that has represented clients that have not been adequately warned—whether by judges or by defense counsel—of the immigration consequences stemming from their pleas, from a practical point-of-view this ruling falls woefully short of providing non-citizen defendants with any real remedy.

The Court of Appeals' ruling involved three cases where defendants challenged their convictions on the grounds they were unaware that deportation was a possibility when they pleaded guilty: People v. Peque, 163; People v. Diaz, 164 and People v. Thomas, 165.

The majority of the court partially overturned its 1995 ruling in People v. Ford, that deportation is just a collateral consequence of a plea and therefore, trial courts need not warn of it. The court found that deportation today is such a substantial and unique consequence of a plea that trial courts must warn defendants as a matter of fundamental fairness. Failure to do so amounts to a due process violation and the avenue of recourse would be a direct appeal.

However, the court stopped short of providing such defendants with the remedy that typically accompanies other due process violations of this sort, specifically, automatic withdrawal, holding instead that a defendant must first establish prejudice. This threshold is the same one a defendant must cross in ineffective assistance of counsel claims, which are established vis-à-vis a post-conviction "440 motion."

As Chief Judge Jonathan Lippman and Judge Jenny Rivera recognized in their dissent, the result is incongruous. Piggy-backing onto the remedy for ineffective assistance of counsel claims is akin to an "empty gesture" when one considers just how extraordinarily difficult it is to prevail in such post-conviction motions. As the moving party, it is the defendant that bears the burden of establishing prejudice and that is a very heavy burden to meet.

First, these defendants suffer from a lack of documentary evidence. Speaking little or no English and unaware of the intricacies of our legal system, this vulnerable class of defendants rarely keeps records of their dealings with their attorneys. Second, these defendants must deal with opposition from individuals that have been specifically trained to handle just these types of motions—individuals in the district attorney's appeals bureaus.

While there has not been an influx of post-conviction 440 motion, in the wake of Padilla v. Kentucky, the Supreme Court decision that held that defense counsel must properly warn non-citizen defendants of the deportation consequences of a plea, district attorney's offices were nonetheless prepared to meet the challenge. The prosecutors' offices, for the most part, keep proper records and do their due diligence.

And they secure witnesses—often getting the very attorney that previously represented the defendant to now testify in opposition of the defendant's motion. This is not surprising considering in an ineffective assistance of counsel claim, one can hardly expect an attorney to admit to deficient representation.

Consequently, defendants can find themselves up against not just one but two attorneys. It's an uphill battle and the odds are stacked against them. In the end, defendants are effectively right where they started, with a due process violation and no real remedy to cure it.

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