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Guest Post: Mike Tobin on SCOW’s new, narrow interpretation of Padilla

State v. Shata, 2015 WI 74, 7/9/15, reversing an unpublished court of appeals decision, 2013AP1437-CR; majority opinion by Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

State v. Ortiz-Mondragon, 2015 WI 73, 7/9/15, affirming a published court of appeals decision, 2013AP2435-CR, majority opinion by Justice Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

In a pair of 5-2 decisions, the Wisconsin Supreme Court held that defense attorneys provided adequate advice about immigration consequences.  In each case, the defendant sought withdrawal of his guilty plea because he had not been properly advised regarding the mandatory adverse immigration consequences of conviction.

As described below, the cases presented different circumstances regarding the nature of the convictions and the advice given by the attorney.  Nonetheless, the following points seem clear regarding the court’s interpretation of Padilla v. Kentucky: 1) the court is narrowly interpreting the obligations of defense attorneys under Padilla; 2) the court does not believe that deportation is ever automatic or mandatory; and 3) if the information or advice provided was accurate, the court will find that the attorney’s performance was adequate, regardless of extent of legal research that the attorney conducted.

Shata

The attorney had advised his client that a felony drug conviction (possession of marijuana with intent to deliver) would lead to a “strong chance that he could be deported.”  Shata argued that this advice was insufficient under Padilla because the conviction provided clear grounds for his deportation.  The State and the court agreed that the conviction clearly made Shata deportable (Slip op. ¶36), but the court ultimately determined that the clarity in the immigration statute did not equate to certainty that Shata would, in fact, be deported.

The majority emphasized the discretionary nature of immigration enforcement, pointing out that the federal Department of Homeland Security has discretion to pursue or not pursue deportation.  (Id. ¶¶5, 59-63).  Given this prosecutorial discretion, the majority rejected Shata’s argument that defense attorney was required to advise him that he was “subject to mandatory deportation” or that “federal law required he be deported.”  (Shata’s arguments summarized at Id. ¶21).  Therefore, the attorney’s advice was deemed accurate (the majority emphasized the attorney’s testimony at the Machner hearing that he told Shata of the “strong chance” of deportation).

The majority pointed out that the Padilla Court used the phrase “presumptively deportable” in reference to the potential deportation consequences of a drug offense.  (Shata,  ¶45).  Unlike Padilla’s attorney, who incorrectly gave his client a false sense of security, Shata’s attorney correctly warned of the “strong chance” of deportation.  (Id. ¶58).

Justice Bradley’s dissent criticizes the majority for confusing the differing responsibilities of the court and the defense attorney in providing the defendant with information regarding the consequences of a guilty plea.  Although the majority approved the “strong chance” advice given by Shata’s attorney, the majority also implied that defense attorneys could comply with Padilla by giving the boilerplate advice contained in Wis. Stat. sec. 971.08(1)(c) (that a non-citizen may face deportation).  (Slip op. ¶67).  The dissent correctly points out that the defense attorney, unlike the judge, has the responsibility to investigative the pertinent facts in the client’s case, which the attorney must then discuss with the client in light of the applicable law.  (Id. ¶¶ 107-111).

The dissent would also have held that the defense attorney was defective for failing to read the pertinent federal immigration statutes.  (Id. ¶¶85-97).  The attorney testified that he had not conducted independent research, but had relied upon conversations with federal prosecutors about the potential immigration consequences.  (Id. ¶22).  The majority held that because the attorney gave correct advice, failure to read the underlying statutes was not defective.  (Id. ¶75).  Although this interpretation of the performance prong of ineffective assistance is defensible (if the content of legal analysis or advice is accurate, the source of knowledge may not be critical), the dissent is absolutely correct to emphasize defense attorney’s responsibility to research the law.

The dissent’s bottom line: consistent with Padilla, Shata’s defense attorney needed to advise him that the conviction would make him “subject to automatic deportation.”  (Slip op. ¶112, quoting Padilla).

Ortiz-Mondragon

Although also interpreting the duties of the defense attorney under Padilla, this case differed from Shata in two potentially significant aspects.  First, the parties disagreed whether Ortiz-Mondragon’s conviction for substantial battery, as an act of domestic abuse, would clearly render him subject to deportation.  The State argued, and the court’s majority agreed, that the potential for deportation was much less clear than in Padilla and Shata (in both of those cases, the immigration statute in question clearly made the defendants subject to deportation).

Second, the advice provided by Ortiz-Mondragon’s attorney was simply that deportation was possible, tracking the language in section 971.08(1)(c) and the standard plea questionnaire.  This advice differed from the “strong chance” language used by the defense attorney in Shata.

The majority agreed with the State that the potential immigration consequences were less clear than in Padilla.  (Slip op. ¶¶36-51, discussing complexity of immigration law related to the general category of crimes against moral turpitude).  Therefore, the attorney’s equivocal advice (that the conviction could result in deportation) satisfied the attorney’s obligation to neither overstate nor understate the potential immigration consequences.  (Id. ¶¶62-63).

The similarities between the two cases seemingly outweigh the differences.  In both cases, the court embraced the generic statutory language (section 971.08(1)(c)) as reflecting the uncertainty inherent in immigration law (Ortiz-Mondragon) or enforcement policies (Shata).  In neither case did the court, once satisfied that the attorney’s advice was accurate and sufficient, inquire as to the extent of the attorney’s legal research or factual investigation of the immigration issue.

Both decisions reflect a narrow interpretation of Padilla, with the implication that the defense attorney’s use of the generic statutory language will often constitute adequate advice.  If a defense attorney in a future case uses the weaker, generic language (that the defendant may face deportation) when the law is as clear as in Shata, the case might present a “strong chance” for clarifying whether any additional advice is required.  Given the extensive analysis in Ortiz-Mondragon of whether the applicable immigration law was clear, the court might require more than the generic advice (tracking section 971.08(1)(c)) when the immigration consequences are as clear as in Shata.

Practitioners should keep in mind that post-conviction issues focus on minimum standards, not on best practices for representation.  In serving our non-citizen clients, we must remember the importance of immigration consequences-often more important to the client than potential imprisonment.  Although outnumbered in the court’s voting, Justice Bradley in her dissents provides better guidance than the majority regarding how we can effectively serve our clients.

The SPD website, the SPD’s Immigration Practice Group, and the UW Law School’s Immigrant Justice Clinic are among the resources available to assist attorneys in determining potential immigration consequences.

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