Padilla cert petition on SCOTUS conference agenda

The U.S. Supreme Court will consider whether to hear a case about the contours of Padilla v. Kentucky, 559 U.S. 356 (2010), when it meets on Friday. Longtime LPR Isabel Rodríguez is asking the Court to overturn a Texas state court’s conclusion that eligibility for cancellation of removal means her removal was not “truly clear.” Rodríguez v. Texas, No. 13-5860 (U.S.).

The lower court decision, Ex Parte Rodríguez, Nos. 04-11-00038-CR, 04-11-00039-CR, 2012 Tex. App. LEXIS 3207 (Tex. Ct. App. April 25, 2012), stemmed from convictions for theft by check and prostitute. According to the Texas court, both are crimes involving moral turpitude. Under INA § 237(a)(2)(A)(ii), this would subject Rodríguez to removal. Padilla would seem to require that the criminal defense attorney inform her that conviction for these offenses would result in her “presumptively mandatory” removal, to borrow the Supreme Court’s words, which the defense attorney admitted to not having done. 559 U.S. at 369.

The Texas court, however, disagreed. According to the state court, Rodríguez was not entitled to clear advice that conviction would result in presumptively mandatory removal because the consequence of conviction was not “truly clear.” According to the court, “The specificity of the warning that Padilla requires turns on whether ‘the deportation consequence is truly clear,’ but Padilla does not state what ‘deportation consequence’ comprises. Specifically, Padilla does not state whether deportation consequence analysis is limited to determining whether the statutory terms making the noncitizen defendant deportable are succinct, clear, and explicit, or if the analysis also includes the defendant’s eligibility for cancellation of removal.”

Importantly, the state court concluded that Rodríguez remained eligible for cancellation of removal despite these convictions because she was not convicted of an aggravated felony. Moreover, the court adds that, in this way, Rodríguez is different from Mr. Padilla who, the court claims, “was not eligible for discretionary relief.”

There is much to disagree with in this analysis, and the cert. petition hones in on some of that. Specifically, the cert. petition urges the Supreme Court to clarify the scope of a criminal defense attorney’s advice obligation: must the criminal defense attorney take into account eligibility for relief or not? Pet. for Writ of Certiorari, Rodríguez v. State, No. 13-5860, at 15 (U.S.). The cert. petition urges the Court to adopt the latter position. “[N]othing in Padilla mandates, or even suggests, that proper immigration advice requires a lawyer to ideate the end result of the immigration proceedings, that is, whether a client will ultimately receive any relief from deportation from an immigration judge.” Id. Rodríguez’s attorney, George M. Aristotelidis, also points out that even people convicted of an aggravated felony remain eligible for relief—specifically relief provided by the Convention Against Torture. Id. at 15.

I would add that the state court assumed an important legal conclusion. It claims that the Padilla Court concluded that Mr. Padilla “was not eligible for cancellation of removal.” That simply is not correct. The Court never said that. It didn’t have to for its purposes. Moreover, it did explain that his convictions rendered him removable and, for support, cited and quoted the controlled substances offense provision at INA § 237(a)(2)(B). This is not to say that his convictions were not aggravated felonies, only that the Court didn’t need to and did not actually conclude that they were. Indeed, in an article I recently published in the Georgtown Immigration Law Journal, which Mr. Aristotelidis kindly discussed in his cert. petition, I go into much more detail about why it is possible that Mr. Padilla’s convictions would not be deemed aggravated felonies. César Cuauhtémoc García Hernández, Criminal Defense After Padilla v. Kentucky, 26 Georgetown Immigration Law Journal 475, 496 n.134 (2012).

The Supreme Court is scheduled to consider this cert. petition on Friday, October 18. If it decides to hear the case, I’ll be sure to update readers.