To vacate a conviction under Padilla, the defendant must establish that he suffered prejudice from defense counsel’s failure to provide competent advice regarding the advisability of entering the plea in light of the immigration consequences; this requires showing that the defendant would have rationally decided not to enter the guilty plea if properly advised. IDP is involved in ensuring that courts apply a meaningful prejudice standard that accounts for the unique circumstances of a non-citizen pleading guilty unaware of the harsh immigration consequences of that decision.
The First (People v. Chacko) and Second (People v. Picca) Departments have articulated a meaningful prejudice standard for Padilla post-conviction relief cases. The Picca and Chacko Courts held that the analysis of whether a defendant suffered prejudice from defense counsel’s failure to advise regarding the immigration consequences of a plea must include consideration of the defendant’s particular circumstances informing his desire to remain in the United States, such as length of residence, family ties in the U.S., lack of ties to the country of origin, employment history, etc. The cases also suggest that prejudice could flow from an attorney’s failure to seek a reasonably available alternative plea that mitigated or eliminated immigration consequences.
IDP provided key legal support to the Picca defendant’s attorney, Lynn Fahey at Appellate Advocates. IDP’s amicus brief in People v. Chacko argues that the prejudice standard for Padilla post-conviction relief cases includes the failure to seek a reasonably available disposition that mitigates or eliminates the immigration consequences here.
Court Notifications of Immigration Consequences
One of the most troubling Padilla prejudice issues is whether a boilerplate judicial notification of immigration consequences erases the prejudice caused by the failure of defense counsel to competently counsel the defendant regarding the advisability of entering the plea in light of the immigration consequences. IDP submitted an amicus brief in People v. Lambert (2014) asserting that such a notification does not cure the prejudice stemming from counsel’s error. Recently, the Second Department in People v. Rampersaud (2014) held that the defendant was unable to establish prejudice because the notification of immigration consequences at the plea colloquy rendered him “indisputably aware of those possible consequences before he entered his plea.” The defendant is seeking leave to appeal this decision to the Court of Appeals.
Must a non-citizen wait until she is inremoval proceedings before filing a Padilla 440 motion challenging an unconstitutional conviction?
Several New York trial courts have held that the answer is “yes.” However, in that scenario, the noncitizen may be deported before the court decides whether the conviction is valid. Also, once removal proceedings commence, the noncitizen may suffer other harms such as prolonged detention, often in intolerable conditions, and great difficulty securing counsel for either case due to a lack of income. This amicus brief highlights the serious and irreparable harm that may befall a noncitizen if she must wait to challenge an unconstitutional conviction until the federal government brings removal proceedings based on that conviction.