Washington Supreme Court Considers Post-Padilla IAC Claim
by: Bronson D. James • March 16, 2011 • no comments
The Washington State Supreme Court today issued an opinion about ineffective assistance of counsel with respect to immigration advice given in the context of a plea agreement. Post-Padilla, we'll probably see more of these state level opinions working through the new requirements. I would expect an Oregon one eventually, but I'm not sure if any are currently up on PFR. In any case, the opinion, State v. Sandoval, is worth a look.
After initial reading, two points of note come immediately to mind. First, the court concludes that competent defense counsel must not only advise on deportation, but other non-removal consequences such as exclusion, bars to adjustment of status, and naturalization. In short, defense counsel needs to know a few more sections of the INA. As the court says:
"In other words, even if immigration law does not reveal clearly whether the offense is deportable, competent counsel informs the defendant that deportation is at least possible, along with exclusion, ineligibility for citizenship, and any other adverse immigration consequences."
"Padilla rejected the proposition that only affirmative misadvice about the deportation consequences of a guilty plea, but not the failure togive such advice, could constitute ineffective assistance of counsel."
Second, the court discusses the length competent counsel must go to in determining if something is an aggravated felony for the INA, or a crime of moral turpitude. In short, counsel must dig a little deeper than just the surface.
Bronson James is an attorney with JDL Attorneys, specializing in criminal appeals and immigration work. Visit their site for further resources on this and other issues.
