Blazing new trails in the law here in Virginia. It's been a year since the Padilla v. Kentucky decision of the US Supreme Court, which found that defense lawyers have an affirmative duty to warn their non-citizen clients about the immigration consequences of their plea. And state courts continue to wrestle with how to incorporate the ruling into their laws dealing with postconviction remedies.

Shouldn't Padilla be enough? Shouldn't the US Supreme Court's words be binding on all courts? Well, yes and no. It is true that no court can, after the decision, state that defense lawyers do not have to advise their clients. What's not clear is whether the rule is retroactive, ie, does it apply to defendants who pled guilty before the Padilla decision, and also whether the state court's postconviction laws provide a way to reopen the conviction.

 In Virginia, there were two cases on appeal to the Virginia Supreme Court – Commonwealth v. Chan and Commonwealth v. Morris. In these two cases, the defense lawyers had failed to provide correct information regarding the immigration consequences of their pleas. Once put in removal proceedings, they filed writs of coram nobis (sometimes called coram vobis) – an ancient common law writ that was meant to correct errors in a proceeding which, if known, would have prevented the judgment from being rendered. For example, suppose a court adjudges a defendant guilty and sentences him, and several years later it is discovered that the defendant was only 16 years old and hence a minor. If that fact was known at the time, it would have prevented rendition of the judgment. The writ of coram nobis exists to correct these types of errors.

On January 13, 2011, the Virginia Supreme Court sharply limited the usability of the writ for cases of misadvice of immigration consequences. The “error” here is the recognition of the fact that the attorney did a competent job. After Padilla, if there was no warning of immigration consequences, it was ineffective assistance of counsel as a matter of law. Would a court render judgment if it knew that the attorney didn't represent his client? Of course not. Therefore, you would think that coram nobis is available to correct the error. The Virginia Supreme Court didn't think so. In its consolidated decision, it ruled that coram nobis is not available for these types of errors.

 There are a host of problems with a decision like this, not the least of which is the fact that it does an end run around Padilla, effectively stating, with regard to a conviction tainted by misadvice on immigration consequences, that “we agree that it's broken, but we have no tool to fix it.” The decision acts as a complete bar to relief. Postconviction remedies in Virginia are usually limited to appeals, motions for reconsideration, or writs of habeus corpus. After that, it becomes very difficult – if not impossible – to challenge a conviction. It is certainly good policy to make convictions “sticky” - they should not be able to be easily overturned. But surely the US Supreme Court ruling that a conviction is unconstitutional should be reason enough to reopen a conviction and fix it. Unfortunately, the Virginia Supreme Court found reliance on Padilla “misplaced,” yet somehow quoted its own ruling to declare that coram nobis is not available. The decision lets a constitutional error remain not only uncorrected, but uncorrectable.

On January 31, 2011 a strange thing happened. A Loudoun County, Virginia district court judge wrote an opinion in Commonwealth v. Cabrera which defied the Virginia Supreme Court and found that coram nobis was available to correct such errors. There was a fascinating discussion on the principle of stare decisis, a legal doctrine that says that courts are bound to follow previous decisions of other courts, especially higher courts. But the doctrine is not absolute. In the Cabrera decision, Judge Worcester found that if a decision is at odds with longstanding precedent and creates confusion, a court is not bound to follow it. Moreover, there is the matter that the US Supreme Court is superior to the Virginia Supreme Court. It calls into question the Supremacy Clause, a part of the US Constitution that says that it is the supreme law of the land. Judges are bound by oath to uphold the constitution, not follow stare decisis. Courts can get it wrong. The right decision should ultimately prevail. And even in the doctrine of stare decisis, if a decision is “wrong,” then it takes time to “stick”- in other words, there must be an element of societal reliance built up to such an extent that to unravel the bad decision would do more harm than good.

Applying all these factors, it is clear that Virginia Supreme Court got it wrong.

On January 18, 2011 the Student and Exchange Visitor Program (SEVP) invalidated all student visas issued on behalf of Tri Valley University in Pleasanton, California. At this point, it looks like the university was a sham, run as a business after defrauding the US government into granting authorization to issue I-20's to enable foreign students to obtain F-1 visas and obtain nonimmigrant student status in the United States. Nearly all of TVU's students hailed from Andhra Pradesh, a province in South India.

Immigration & Customs Enforcement (ICE) has promised to use good judgment, evaluating each student's situation on a case by case basis. In the weeks after January 18, some students were detained, others were placed with GPS monitoring bracelets on their ankles, and still others have been let alone.

There is a lot of speculation on the Internet as to what can or should be done. Unfortunately, as this is an ongoing and developing situation, hard facts are hard to come by.

ICE has indicated on its website that TVU students are encouraged (if not forced) to call in and give their contact information and they would be told what options they had. To date, it seems there are 3 options: 1) go back home (with no penalty, although that's somewhat unclear), 2) reinstate F-1 with another school, or 3) voluntary departure. Some students have been placed in removal proceedings. As a general rule, it is somewhat troubling that ICE asks all the students to report all their information in the absence of clear guidance or assurance that they will not be criminally associated with the fraud.

The concern I have as a criminal immigration lawyer is that the student body of TVU is a vulnerable group that may become swept up in the allegations of fraud. Remember, because immigration benefits are not rights, they can be taken away much more easily. One potential consequence is that once the students leave the US, their names may be submitted to SEVP's counterterrorism and criminal exploitation unit. Result? Not coming back to the US, because it will be impossible to secure any type of visa.

Obviously this is an ongoing investigation. We do not yet know where it will go, or what picture the fraud will finally take. One catch phrase that seems to be repeated in this case is “if it seems too good to be true, it probably is.” My concern is: will the US Attorney's Office and/or ICE hold the students of TVU criminally responsible for getting duped by Dr. Susan Su's allegedly “sham university”? There are several troubling details: the fact that a large number of students (more than half) were registered in SEVIS as living in one apartment in Sunnyvale, California. And according to the forfeiture complaint filed in US District Court for the Northern District of California, TVU employed a kickback referral scheme wherein a referring student would collect 20% of a referee student's tuition payment, thus creating a large pyramid scheme. And there is also the fact that nearly all (95+%) of TVU's students hail from Telugu-speaking Andhra Pradesh, and that Anji Reddy and Rama Krishta Karra - two of the TVU staff now being blamed by Dr. Su – are also Telugu speaking.

The US Attorney's Office will want to know how much students “knew.” Remember – just because the students of TVU (or, for that matter, the Government of India) believe the students to be victims of an elaborate fraud does not mean the US government sees it the same way.

At our office we have been receiving calls requesting attorney presence at “interviews” being requested by ICE. And from reading posts made by my colleagues at the immigration bar, it would seem that the purpose of these ICE interviews, at least in part, is to investigate: to find out how TVU operated, how money was collected, and how much people knew. I believe there is a real risk that the more information the student body gives, the less likely it is that the US Attorney's Office will believe that they are victims.

There are real risks in this very unfortunate situation. If you have been contacted by DHS ICE or other law enforcement, do not agree to meet them without a lawyer present. Ideally you need to have a lawyer familiar with both criminal and immigration law. Remember that ICE is not necessarily interested in helping you remain in the United States.

On March 31, 2010 the US Supreme Court handed down a 7-2 decision in the case of Padilla v. Kentucky, 559 U.S. _____ (2010).  And boy, have we been waiting on this one.

Briefly, the case is about a long-term green card holder who was given a piece of very bad advice by his lawyer when pleading guilty to a drug offense.   The Sixth Amendment to the US Constitution guarantees that all criminal defendants will have a competent lawyer for their defense.  So the question is, is it incompetence if a lawyer either gives wrong advice or fails to advise his client about the clear risk of deportation?

The lower courts all said no, reasoning that deportation is not a direct criminal consequence of a guilty plea, so a criminal defense attorney has no duty to advise his client of it.  The defense attorney has to advise his client, for example, that he is giving up his right to appeal, to a trial, to confront witnesses against him, to the presumption of innocence, and many other rights, because these are direct consequences of a guilty plea.  But there are other potential consequences: ineligibility to vote, difficulty in finding a job, or loss of security clearance. 

What about deportation?  The lower courts found that deportation is not a direct consequence, but a collateral (or indirect) consequence of pleading guilty.  And these courts refused to place a duty on the defense attorney to advise about deportation, saying in effect it was the same as other indirect consequences, like ineligibility to vote.

The Supreme Court, thankfully, saw differently. It rejected this whole distinction between direct and collateral.  It is an artificial distinction, it has actually never been used, in this context, and it invites absurd results, allowing a defense attorney to misadvise his client regarding what may be the most important factor in his decision to plead guilty.  Even worse, it allows a defense attorney who does not know immigration law to merely remain silent, and fail to advise his client about what may be the most important factor in his decision to plead guilty.

Although deportation has long been considered a "drastic measure," (see Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948)) this is the first time the Court has found that because deportation is "intimately related to the criminal process" the defense attorney has an affirmative duty to advise about it correctly.  Other immigration consequences (such as ineligibility for naturalization, or eligibility for some form of relief in removal proceedings) should also be advised about, but the Court did not place the duty of knowing all immigration law on the shoulders of defense counsel.  Rather, the duty extends to saying, "Pleading guilty may have some adverse consequences," but if the risk of deportation is truly clear (e.g., the conviction is considered an aggravated felony by the immigration law) then the advice must be, "Pleading guilty will likely result in your deportation from the United States."

In my opinion, this is an important case.  But more importantly, I believe this will become a very important case.  Why?  Because for the first time, the highest court in the land has come down definitively to say that "changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction," and further that the Court found it "most difficult" to divorce the penalty from the conviction in the deportation context.  The law has severely limited judicial review, taken away the old trump card of the JRAD (judicial recommendation against deportation), made deportation virtually automatic for an ever increasing list of offenses, and has exalted form over function in the criminal immigration law.  This is the first time since IIRAIRA in 1996 that the Court has recognized that the current law is so strict that it can easily impinge on an individual's constitutional rights.  Deportation breaks up families and causes untold hardships on innocent people, the same as a criminal conviction.  I am not suggesting that the law treat immigrants and citizens the same in all contexts.  But to demote deportation to a "collateral civil consequence" like ineligibility to vote is just ludicrous.

It's time to start using common sense and stop pretending that a Vietnam veteran like Padilla who's been in the country for 40 years has the same rights as a person who overstayed their visa last month.  The system can't have it both ways: first making this incredibly complex (and frequently nonsensical) criminal immigration law with the power to automatically deport, but at the same time tell defense attorneys that there's no need to advise their clients about any of it. 

The Court's decision, to me, represents the dawning awareness that people's lives should not be easily destroyable. 

If you have a criminal conviction that has made you removable from the United States, contact an attorney to see if this new decision opens up any new options for you.