You Just Won A One-Way Ticket to...?

Imagine winning a contest where the vacation is fully compensated and the only condition of acceptance is that you don't get to know where you're going. Any takers? Think that something just doesn't sit right with this scenario?

The U.S. Supreme Court answered that question last week, in Padilla v. Kentucky, by ruling that when a non-citizen client has pending criminal charges, and the deportation consequences of that plea are truly clear, he has a right to be advised of them. He has a right to know the destination of his ticket. Moreover, he certainly can't be told he's on his way to the Bahamas, when his ticket provides otherwise.

Practically speaking, the issue of deportation consequences relating to criminal convictions arise everyday, in both misdemeanors and felony practice. The Court is aware of this: "[D]eportation is an integral part, indeed, sometimes the most important part of the penalty that may be imposed on non-citizen defendants who plead guilty to specified crimes." When a client is in custody, one of the first things a keen defense attorney looks out for is an "ICE" (U.S. Immigration and Customs Enforcement) hold, which is a red flag that the person could likely be deported for the alleged offense. And it's one of those issues that no one is jumping at to assert a position on because the results are so unpredictable.

Strangely, someone's minor theft admission could trigger deportation, while another's DUI plea could have him or her home by supper. In all fairness, the judge, the prosecutor and of course, the defense attorney often try to make it clear to the client that a plea can result in deportation. But every time that admonition is given on the record, there is this deep-down feeling that I think everyone in the room has, which is that the client should know if he or she is in fact going to be deported. Rather, the client's immigration fate is to be decided in an immigration hearing at some future date and time.

The spirit of the majority and even Justice Samuel A. Alito Jr.'s concurrence is that a client should know where his ticket's destination is. At the same time, they realize that the criminal defense lawyer is not a "travel agent" for the purpose of knowing if, when, and where someone is going to be deported. Basically, the defense lawyer can only be expected to inform the client that his plea can result in deportation.

But that still leaves the client in a position of uncertainty and unimaginable anxiety. Picture a single mother of two kids in school, trying to keep her minimum wage job (if lucky), who is being charged for the second time in 10 years to the unlawful taking of a goods valued under $400, but she doesn't currently have an immigration hold. If she pleads no contest, she might be deported and who knows what will be the fate of her two kids. If she pleads not guilty, and the judge releases her on her own recognizance, an immigration hold might subsequently be placed on her and she will remain in custody while her case is pending because of the immigration hold. What does she do? Will she be comforted by the following advice, "You might be deported if you plead no contest or you might not be...You might not be seeing your two daughters tomorrow if you plead no contest."

There is no satisfaction in uncertainty. There is almost no excuse for it, especially in this day in age where, in the palm of our hands, our cell phone can tell us Kobe Bryant's field goal percentage from the previous night's game.

The optimal solution would be for the passing of legislation for immigration lawyers to staff the courthouses, via public funding, to provide immigration advice on-demand. This idea is by no means suggesting that the criminal defense lawyer should "pass the buck" off to an immigration lawyer. Rather, it is ensuring that the right person is handling the job.

In a way, the Court hints at this when it says, "[I]mmigration law can be complex, and is a legal specialty of its own." It realizes that the criminal defense lawyer is no substitute for an attorney who specializes in immigration law. In fact, they are separate courses in law school. To put it another way, asking a criminal defense lawyer to also be an immigration attorney is like asking the criminal defense lawyer to learn Spanish, in lieu of using the assistance of the court-appointed Spanish language interpreter. Immigration law is another language, and there needs to be someone in the court who can speak it fluently.

Irrespective of whether immigration lawyers can be appointed in criminal proceedings, there should be a system in place where criminal defense lawyers can communicate directly with a U.S. Immigration and Customs Enforcement representative about the fate of a particular client. Preferably, they should have representatives in-person, in the major courthouses. At the very least, they should be available for immediate communication via telephone. Much like a parole officer, this representative could explain what their feelings are about the case, what outcome will be recommended to the Hearing Officer, and what will be of assistance in this particular case.

That way, at least the client will be more informed and equipped at the time of pleading as to what his or her outcome will likely be.

As a criminal defense lawyer, it would be easy to walk away from this ruling, being confident that as long the bare minimum of immigration advice is provided to the client that the job of the criminal defense lawyer is done. But as a member of a conscience society, which believes in fairness and decency, we all share a duty to take this ruling and build on it, to find ways to ensure that the accused stands informed of both criminal and immigration consequences. The Court did its job, now we need to do ours.