IMMIGRATION CONSEQUENCES OF
CRIMINAL PROCEEDINGS
In this comment, Magdalena Cuprys, Esq.
addresses and explains the problem of immigration consequences that may
unintentionally result from a plea of guilty or nolo contendere
In the first
article of her series of Instructional Articles, Florida Attorney Magdalena Cuprys
comments on the issue of immigration consequences resulting from criminal pleas
of guilty or nolo contendere, and how to challenge such guilty pleas
subsequently in court.
Attorney
Cuprys recently prevailed in a case in the Circuit Court of the Eleventh
Judicial Circuit of Florida where she moved to vacate a judgment and sentence.
She bases her comments on that case.
The facts of the case are as
follows: The Defendant A.P.B., a Cuban citizen and resident of the U.S. since
2002, plead guilty in trial court to marihuana-related offenses, including
selling and possession with intent. Apparently A.P.B.’s home was burglarized,
and when police came to investigate, they found he was growing 26 marijuana
plants inside the house. He had no prior criminal history. At the time, A.P.B.
was represented by a different attorney who apparently did not inform the
Defendant of any adverse immigration consequences that would result if he plead
guilty. In fact, it seems that the prior attorney informed A.P.B. that there
would be no adverse immigration consequences because he was a U.S. resident. It
seems the attorney also failed to inform A.P.B. that a diversion program (“Drug
Court”) would be available to him after which any charges would be dismissed if
successfully completed. A.P.B. plead guilty in 2009 and was promptly arrested
by officers of the U.S. Department of Homeland Security, Immigration and
Customs Enforcement (“ICE”), and put into removal (deportation) proceedings.
Based on these facts, Attorney
Magdalena Cuprys filed a Motion to vacate A.P.B.’s guilty plea and sentence,
and alleging “ineffective assistance of counsel” by the prior attorney.
According to A.P.B.’s affidavit, he relied on his attorney’s advice that there
would be no adverse immigration consequences.
The key cases in this regard, under
these particular circumstances, are Padilla v. Kentucky, 130 S.Ct. 1473, 559
U.S. 356 (2010) (as for federal law), and Julien v. State, 917 So. 2d 213 (Fla.
4 DCA 2005) (as for Florida state law).
According to the
Supreme Court’s opinion in Padilla, a criminal defense attorneys must advise
noncitizen clients about the deportation risks
of a guilty plea.
The case extended the Supreme Court's prior decisions on criminal
defendants' Sixth
Amendment right to counsel to immigration
consequences. See Wikipedia, https://en.wikipedia.org/wiki/Padilla_v._Kentucky.
The duties of Counsel
recognized in Padilla are broad. After Padilla, if
the law is unambiguous, attorneys must advise their criminal clients that
deportation will result from a conviction. Also, if the immigration
consequences of a conviction are unclear or uncertain, attorneys must advise
that deportation "may" result. Finally, attorneys must give their
clients some advice about deportation: counsel cannot remain silent about
immigration. Id.
Let’s look at couple of the key
sections of the Padilla Opinion. The Court summarized the facts and holding as
follows:
“Petitioner
Padilla, a lawful permanent resident of the United States for over 40 years,
faces deportation after pleading guilty to drug distribution charges in
Kentucky. In postconviction proceedings, he claims that his counsel not only
failed to advise him of this consequence before he entered the plea, but also
told him not to worry about deportation since he had lived in this country so
long. He alleges that he would have gone to trial had he not received this
incorrect advice. The Kentucky Supreme Court denied Padilla postconviction
relief on the ground that the Sixth Amendment’s effective assistance-of-counsel
guarantee does not protect defendants from erroneous deportation advice because
deportation is merely a “collateral” consequence of a conviction.
Held:
Because counsel must inform a client whether his plea carries a risk of
deportation, Padilla has sufficiently alleged that his counsel was
constitutionally deficient. Whether he is entitled to relief depends on whether
he has been prejudiced, a matter not addressed here. Pp. 2–18.”
The Court recognized that changes to immigration
law have dramatically raised the stakes of a noncitizen’s criminal conviction.
While once there was only a narrow class of deportable offenses and judges
wielded broad discretionary authority to prevent deportation, immigration law
changes have expanded the class of deportable offenses and limited judges’ ability
to alleviate deportation’s harsh consequences. Because the drastic measure of
deportation or removal is now virtually inevitable for a vast number of
noncitizens convicted of crimes, the importance of accurate legal advice for
noncitizens accused of crimes has never been more important. Thus, as a matter
of federal law, deportation is an integral part of the penalty that may be
imposed on noncitizen defendants who plead guilty to specified crimes. See the Court’s summary of the case.
The Supreme Court then concluded
that:
“It is our responsibility
under the Constitution to ensure that no criminal defendant—whether a citizen
or not—is left to the ‘mercies of incompetent counsel.’ Richardson,397 U.S., at 771, 90 S.Ct. 1441. To satisfy
this responsibility, we now hold that counsel must inform her client whether
his plea carries a risk of deportation. Our longstanding Sixth Amendment
precedents, the seriousness of deportation as a consequence of a criminal plea,
and the concomitant impact of deportation on families living lawfully in this
country demand no less. Taking as true the basis for his motion for
postconviction relief, we have little difficulty 1487*1487 concluding
that Padilla has sufficiently alleged that his counsel was constitutionally
deficient. Whether Padilla is entitled to relief will depend on whether he can
demonstrate prejudice as a result thereof, a question we do not reach because
it was not passed on below. …”
This “ineffective assistance of
counsel” argument can then be further supported with state law. In this case
(Florida), Attorney Cuprys supplemented the federal law argument with Julien v.
State. In the rather brief opinion of Julien v. State, the Court ruled that an
attorney provided ineffective assistance of counsel for failing to inform his
client of the option to apply for the pre-trial diversion program. That case is
similar to the current set of facts as to A.P.B. in that the Drug Court program
(just like a pre-trial diversion program) offers an alternative to pleading
guilty.
The basic facts are that Maxime Julien was arrested for
shoplifting some shoes from Burdines Department Store. A first-time offender,
pled guilty to grand theft and was placed on probation. As a result of his
plea, the United States commenced removal proceedings to rescind his permanent
residence status and remove him to Haiti. Julien filed a motion for
post-conviction relief under Florida Rule of Criminal Procedure 3.850, alleging
ineffective assistance of counsel. In his amended motion for postconviction relief,
Julien alleged that his attorney was ineffective in failing to inform him of
his option to apply for the Pretrial Intervention Program (PTI), and in failing
to investigate his claim that he should have been charged with misdemeanor
petit theft instead of felony grand theft because the value of the stolen
merchandise was under $300.
The Court notes that “Florida
Rule of Criminal Procedure 3.171(c)(2)(B) places a responsibility upon defense
counsel to advise a defendant of all plea offers and "all pertinent
matters bearing on the choice of which plea to enter and the particulars
attendant upon each plea and the likely results thereof, as well as any
possible alternatives that may be open to the defendant." (Emphasis
supplied). As the criminal law expert explained, the PTI program is a
"possible alternative" available to a first-time offender. For a
first-time offender facing immigration consequences, the program is critical. A
defendant derives a "tremendous" benefit by having his charge
dismissed after completing the program. Considering these factors, we conclude
that defense counsel's failure to inform appellant of this possible alternative
constituted a deficient performance. See Jones v.
State, 832 So.2d 207 (Fla. 1st DCA 2002) (holding
that movant for post-conviction relief, who alleged that his counsel was
ineffective in allowing him to plead to felony driving while license is
suspended or revoked (DWLSR) without advising him of statutory avenue for
leniency available to certain DWLSR defendants, made a facially sufficient
allegation warranting further post-conviction proceedings); Cottle v.
State, 733 So.2d 963, 967 (Fla.1999) (noting
that Florida courts, along with other state and federal courts, recognize ineffective
assistance claims based on counsel's failure to convey a plea).”
Based on these arguments presented
by Attorney Cuprys, the Court granted the Motion on August 31, 2018, ordering
that the Defendant’s plea, conviction, judgment and sentence be vacated.
The underlying case is State of
Florida vs. A.P.B., Case No. F08-0035564 (August 31, 2018).
*** Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries. References Law Firm Website: www.servingimmigrants.com Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169 Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/ Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433 Findlaw: https://pview.findlaw.com/view/4161404_1 Media News article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4 See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/ and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility Ms. Cuprys recently prevailed in a hotly contested asylum cases against the U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
