NAPD's Amicus Committee is pleased to announce that the appellant in United States v. Elizabeth Rodriguez-Vega was successful in her appeal in the U.S. Ninth Circuit Court of Appeals.  That case was argued on July 7th, and the opinion, to be published, was announced on August 14th.  Ms. Rodriguez-Vega was granted federal post-conviction collateral relief, under 28 U.S.C. § 2255, vacating her guilty plea to a federal offense that, had it stood, would have almost certainly have resulted in her deportation to Mexico — a nation that the 26-year-old left when she was 12 years old.  

NAPD joined in an amicus brief jointly authored by Professor Rebecca Sharp­less of the University of Miami School of Law's Immigration Clinic and Attorney Sejal Zota, the Legal Director of the Immigration Project of the National Law­yers Guild (IPNLG). Other attorneys on the brief include Professor Jeffrey L. Fisher of Stanford University, for the Amicus Committee of the National Association of Criminal Defense Lawyers (NACDL); and Attorneys Manual D. Vargas and Dawn Seibert of the Immigration Defense Project (IDP).  NAPD joined NACDL, IDP, IPNLG, and the Immigrant Legal Resources Center as amicus.  Mr. Rodriguez-Vega was ably represented in her federal post-conviction action in the District Court by Attorney Erick L. Guzman, a Santa Clara, Calif., lawyer who represented her pro bono, and on appeal by Assistant Federal Public Defender Douglas Keller of Federal Defenders of San Diego Inc. 

Ms. Rodriguez-Vega, a lawful permanent resident since 2002, was charged with a federal felony for allegedly assisting undocumented alien nationals secure entry, surreptitiously, into the United States.  The Govern­ment offered a plea agreement under which Ms. Rodriguez-Vega would be convicted of a lesser offense, the misdemeanor of Transportation of Illegal Aliens.  Such a conviction, however, carried with it the extraordinarily strong probability of deportation; the only way to avoid that was in the unlikely event that she received discretionary withholding or removal, was exempted under the fam­ily member exception for first-time offenders, or qualified for relief under the Convention Against Torture.  Her situation was such that deporta­tion was vir­tually certain should she plead guilty to even the misdemeanor offense.

The initial plea offer, which Ms. Rodriguez-Vega rejected, required her to stipulate that she would be deported after completing her sentence.  A revised plea agreement, presented to her by her trial attorney, replaced the stipulation with a provision indicating that she "recognize[d] that pleading guilty [might] have consequences" for her "with respect to her immigration status," as well as noting that she had "discussed the terms of [the plea] agreement with defense counsel and fully underst[ood] its meaning and effect.”  Ms. Rodriguez-Vega accepted this plea, and, at her plea hearing, was told by the judge that she could "potentially … be deported or removed, perhaps.”  At her sentencing hearing, her trial attorney noted in open court that "even though this is a misdemeanor, there is a high likelihood that she’ll still be deported." 

Fifteen days after she was sentenced, Ms. Rodriguez-Vega was informed by U.S. Immigration and Customs Enforcement that she was subject to deportation due to her conviction.  She was taken into custody. While at an immigration detention facility she met Attorney Guzman, who was visiting one of his clients; after hearing what had happened to her, he took her case pro bono.   He filed, on her behalf, a § 2255 post-conviction petition seeking to vacate her conviction (with its consequence of deportation) on the grounds that guilty plea counsel had ineffectively failed to properly advise her of the virtual certainty of deportation.

The defense argued that, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must advise noncitizen defendants that deportation is presumptively mandatory when a proposed plea falls within a removal ground.  That is to say, defense counsel must do more than merely advise noncitizen clients of possible deportation when deportation is virtually certain.  Instead, defense counsel must give a strong warning of virtually certain deportation, even if immigration relief is potentially available, with judicial admonitions being an inadequate substitute for advice from counsel regarding deportation consequences.  There was a reasonable probability, Ms. Rodriguez-Vega maintained, that had she realized that deportation was virtually certain, rather than merely quite likely, she would have rejected the plea offer and either demanded a plea agreement to an offense that would not result in deportation or, if not could not be secured, proceeded to trial.

A federal magistrate judge denied relief (doing so without holding an evidentiary hearing), opining that guilty plea counsel was required only to advise Ms. Rodriguez-Vega that her plea created a general risk of deportation, and that he had satisfied this duty (a) when he informed her, prior to her pleading guilty, that there was a "potential" for deportation, and (b) when he stated at her sentencing hearing that she faced a “high likelihood” of deportation.  Alternatively, the lower court held, even assuming that guilty plea counsel’s representation was deficient, she was not prejudiced by that deficient representation.

Ms. Rodiguez-Vega appealed.  At that point, APD Keller of Federal Defenders of San Diego Inc. assumed her representation.  He briefed and argued the appeal in the Ninth Circuit. On August 14, 2015, a three-judge panel of the Ninth Circuit — in a decision was authorized by Judge Stephen Reinhardt, an appointee of President Carter, joined by Judges Ferdinand Fernandez and Richard Clifton, appointees of President Bush I and President Bush II, respectively — unanimously agreed that guilty plea counsel's representation constituted prejudicially deficient representation.  It held that the court below had erred because it applied the wrong legal standard. 

In so ruling, the panel judges noted that Padilla had held, 559 U.S. at 369, that although "a criminal defense attorney need to no more than advise a noncitizen that pending criminal charges may carry a risk of adverse immigration consequences" in those instances in which "the law is not succinct and straightforward," that was not this situation.  Instead, this was the other situation referred to by the Padilla Court — i.e., the situation in which the "the deportation consequence [was] truly clear."  Id. at 368-369.  The panel echoed what another Ninth Circuit panel said in United States v. Bonilla, 617 F.3d 980, 984 (9th Cir. 2011) — that "[a] criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty."  In this instance, guilty plea counsel's failure to clearly indicate, as he later did at sentencing, that deportation was virtually certain should the plea be accepted failed to provide the information needed.

The panel also rejected the notion that the judge's guilty plea colloquy acted to cure any deficiency in guilty plea counsel's representation (Ms. Rodriguez-Vega having already heard her own lawyer's assertion that deportation was not a virtual certainty, and the judge himself having stated only that she could "potentially … be deported or removed, perhaps").  In addition, it also found that guilty plea counsel's more forceful statement at her sentencing hearing (that being that "there is a high likelihood that she’ll still be deported") did not cure his earlier deficient representation, for what was needed was adequate pre-guilty plea advice, when it would do some good, not adequate post-guilty plea advice.  Finally, the panel rejected the finding that Mr. Rodriguez-Vega would not have gone to trial had she realized that deportation was a virtual certainly, given that the balance of circumstances (at most 16 months in custody if convicted followed by deportation, with deportation resulting in "lifetime separation from her family and the country in which they reside," versus a chance of acquittal and freedom from deportation) made it realistic to conclude that this was a risk that she would opt to take.

Barring further review, Ms. Rodriguez-Vega's case will now be returned to the U.S. District Court for the Southern District of California for further proceedings. (NAPD has been informed, however, that the Government has sought an extension of time in which to seek reconsideration of the panel's decision.)

Dawn Seibert pointed out in an email that the Fourth, Fifth, and Ninth Circuits have held that court notifications do not constitute an adequate substitute for proper advice from guilty plea counsel, but that the Third Circuit recently held otherwise. She also expressed the view that "[t]he fight against court notifications needs to start in the trial court, with an effective response from defense counsel when the court delivers the notification. Counsel has to put on the record that the client is taking the plea based on his advice, not the court's notification." She noted that some judges and prosecutors make concerted efforts "to insulate [guilty] pleas from subsequent Padilla challenges," and expressed concern that unless defense attorneys fight back, "courts and prosecutors [might be] allowed to eviscerate Padilla through delivering notifications of immigration consequences to our clients."

Also commenting via e-mail was Ms. Rodriguez-Vega's appellate attorney, Mr. Keller. In his estimation, the amicus brief that was filed was very helpful (he points out that the opinion borrowed "a particularly clever quote from it") and reported that Ms. Rodriguez-Vega was quite grateful for the assistance from amicus.  He also stated that, in his view, the Ninth Circuit's opinion "says loudly and clearly what other courts, including the Supreme Court in Padilla,  have already said:  The Sixth Amendment requires defense counsel to be familiar with the basics of immigration law," and that "defense counsel should not advise their alien clients to plead  guilty before researching the potential immigration consequences of any plea."

NAPD's Amicus Committee congratulates all involved with this effort, particularly Mr. Guzman and Mr. Keller, and expresses its appreciation to the authors of the amicus brief for their superb work in this matter.