NAPD Signs on as Amicus Curiae

Note:  This article is from the NAPD Amicus Committee.

NAPD has signed on as amicus curiae in support of a noncitizen appellant’s counseled post-conviction appeal seeking relief from her guilty plea, with relief sought on the grounds that trial counsel ineffectively failed to properly advise her about the deportation consequences of her plea. NAPD has joined with the National Association of Criminal Defense Lawyers, the National Immigration Project of the National Lawyers Guild, the Immigrant Defense Project, and the Immigrant Legal Resource Center in this endeavor.  The amicus brief was filed on August 14, 2014.

            In United States v. Rodriguez-Vega, Docket No. 13-56415 (9th Cir.), Elizabeth Rodriguez-Vega pled guilty in the United States District Court for the Southern District of California to the federal crime of attempted transportation of an illegal alien (8 U.S.C. § 1324), an aggravated felony.  At the time she pled, she was informed, during a colloquy before the guilty plea judge, that there was a possibility that her guilty plea could have deportation consequences (guilty plea counsel did not even provide that advice).  Following imposition of sentence, she was indeed ordered deported by Immigration and Customs Enforcement.  It turned out that there was more than a mere possibility that she would be deported owing to her conviction; there was instead a high probability that deportation would be ordered, to the point that it was a virtual certainty.

            Ms. Rodriguez-Vega responded to the deportation order by filing a 28 U.S.C. § 2255 post-conviction petition seeking to vacate her guilty plea and sentence on grounds of ineffective guilty plea counsel, citing Padilia v. Kentucky, 559 U.S. 356 (2010) (guilty plea counsel ineffective for failing to inform client that conviction resulting from plea would trigger his deportation).  Relief was denied, however, on the grounds that Ms. Rodriguez-Vega had in fact been informed of the immigration consequences of her plea when she was told, during the plea colloquy, that there existed a (mere) possibility that she would be deported owing to her plea (even though, it was conceded, her plea to an aggravated felony made her chances of immigration relief “severely limited”). 

            Ms. Rodriguez-Vega has appealed the denial of her post-conviction petition to the United States Court of Appeals for the Ninth Circuit.  In that appeal, amicus argue that a proper construction of Padillia is that defense counsel must advise noncitizen defendants like Ms. Rodriguez-Vega that deportation is presumptively mandatory when a proposed plea falls within a removal ground.  Defense counsel must do more than merely advise noncitizen clients of possible deportation when deportation is virtual certain.  Instead, it is urged, defense counsel must give a strong warning of virtual certain deportation even if immigration relief is potentially available.  It is also stressed that judicial admonitions are no substitute for advice from counsel regarding deportation consequences.

            The amicus brief was co-authored by Professor Rebecca Sharpless of the Immigration Clinic of the University of Miami School of Law and Attorney Sejal Zota of the National Immigration Project of the National Lawyers Guild.

The brief can be found at this link.