On Point: d. Deportation

Petition for review of State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, granted 1/18/2017; case activity (including briefs)

Issue presented (from the State’s petition for review):

Now that criminal defense attorneys are obligated to advise their clients about the immigration consequences of their pleas, Padilla v. Kentucky, 559 U.S. 356 (2010), should the Wisconsin Supreme Court overturn its decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the harmless error rule to prohibit a defendant who was aware of the potential immigration consequences of his plea from being able to withdraw the plea just because the circuit court failed to give a statutory immigration warning that complied with Wis. Stat. § 971.08(1)(c)?

State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, petition for review granted 1/18/2017, reversed, 2017 WI 104; case activity (including briefs)

This decision is important to anyone who litigates claims for plea withdrawal under § 971.08(2) because it helps clarify the law in two ways. First, it provides two examples of a circuit court’s failure to comply with § 971.08(1)(c)’s requirement that the defendant be warned about the immigration consequences of a plea. Second, it explains what a defendant must allege to make a sufficient showing that his or her plea is likely to result in deportation.

The Immigration Professors Blog says Arias v. Lynch, No. 14-2839 (7th Cir. 8/2/4/16) would be the “hand down winner” of the “immigration case of the week,” if such a category existed. It highlights the confusion in federal courts over how to define a crime involving moral turpitude a.k.a “CIMT.” Or you can just skip to Judge Richard Posner’s concurrence which argues that “[it] is preposterous that that stale, antiquated, and worse,

State v. Melisa Valadez, 2016 WI 4, 1/28/2016, on certification from the court of appeals; case activity (including briefs)

What looked like a case about the meaning of “likely to result in … deportation” has turned into something else entirely: in a fractured decision, the court holds that the defendant has successfully shown she is likely to be excluded from admission to the country and raises, but does not resolve, the possibility that plea withdrawal claims for failure to give the required immigration warning must be brought within the time limits of Wis. Stat. Rule 809.30 (or perhaps within the strictures of Wis. Stat. § 974.06).

Speaking of Padilla (see below), yesterday the 9th Circuit Court of Appeals held in Dimaya v. Lynch that “the definition of a ‘crime of violence’ – one of over thirty categories of convictions that constitute an ‘aggravated felony’ under federal immigration law – is unconstitutionally void for vagueness.” Click here to see the ImmigrationProf Blog post about the decision and what it could mean for those of you defending immigrants.

This just in: “The Pressure Is On–Criminal Defense Counsel Strategies after Padilla v. Kentucky,” by Bill Ong Hing at the University of San Francisco Law School. When representing an immigrant defendant, trial counsel’s duties are now much more demanding than they were before Padilla. What qualifies as “competent” counsel in these circumstances? Click here for a new research paper attempting to answer this question.

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.

DeBartolo v. United States, 7th Circuit Court of Appeals No. 14-3579, 6/26/15

DeBartolo pleaded guilty to violating 21 U.S.C. § 841(a)(1) by growing more than 100 marijuana plants, “[b]ut unbeknownst to DeBartolo, and also it seems to his lawyer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (‘removable’ is the official term) and, were he ordered removed, would prevent him from applying for cancellation of removal.” (Slip op. at 3). Trial counsel was deficient for failing to advise DeBartolo of the deportation consequences, Padilla v. Kentucky, 559 U.S. 356 (2010), but—in light of the strength of the state’s case and the very favorable plea agreement DeBartolo received—has he shown prejudice? Yes, says a three-judge panel, in an opinion worth reviewing if you are litigating a similar issue.

Question presented:

Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.

Mellouli v. Lynch, USSC No. 1034, 2015 WL 2464047 (June 1, 2015), reversing Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013); Scotusblog page (including links to briefs and commentary)

Resolving a split between federal circuit courts of appeal, the Supreme Court holds that the statute providing for deportation based on a violation of a state drug crime “relating to a controlled substance” is limited to “controlled substance” listed in the federal controlled substances schedule under 21 U.S.C. § 802. Thus, the Eighth Circuit was wrong to hold that any drug offense triggers the removal statute, without regard to the appearance of the drug on a § 802 schedule.