Defense attorneys and deportation

By Travis Loller
Associated Press Writer

NASHVILLE, Tenn. (AP) — He had a Southern accent and went by “Bubba,” but it turned out he wasn’t from the South.

His “good old boy” credentials meant nothing to an immigration judge, who ordered Bubba deported to his native Australia after drug convictions several years ago.

“He was very Southern. He’d been here since he was like 3 years old,” Nashville immigration attorney Charla Haas said. She declined to identify Bubba by his real name, citing attorney-client privilege.

The U.S. Supreme Court recently ruled that defense attorneys must warn immigrants if pleading guilty to a crime could lead to their deportation. Bubba’s case demonstrates one of many problems lawyers expect to have complying with the new ruling: It’s not always apparent who is and isn’t an immigrant.

A majority of the justices agreed that Jose Padilla, a legal U.S. resident, had received ineffective assistance of counsel when his attorney advised him to plead guilty to a drug charge that triggered a deportation order. Padilla said his attorney wrongly advised him that the plea would not affect his immigration status.

Tim Arnold, post-trial division director of the Kentucky Department of Public Advocacy, represented Padilla in court in Kentucky and was of-counsel when the case went before the U.S. Supreme Court. He said that knowing the immigration consequences of a particular charge can be tricky.

“The challenge is that immigration law is complicated,” he said. “... What immigration law describes as a mandatorily deportable offense is not necessarily something a defense attorney thinks of as a serious offense.”

Migjen Kolshi, an ethnic Albanian refugee from Kosovo, faced that situation when he was arrested in Nashville on a misdemeanor domestic assault charge. Some charges, even if they are misdemeanors in criminal court, are considered aggravated felonies for the purposes of immigration law.

But his public defender didn’t know that when he advised him to plead guilty. His criminal sentence was light — probation and time-served for the 12 hours he had spent in jail — but the immigration consequences were devastating. Immigration and Customs Enforcement detained him for deportation.

The idea of returning to a country he had left at 13, after his village was destroyed and he was forced to watch as his relatives were murdered, terrified Kolshi.

“I was going to tell them, I guess, just keep me in jail,” he said. “At least here I have something to eat. I guess I’ll just stay in jail until I die.”

Immigration attorney Sean Lewis was able to have the deportation order thrown out on a technicality, but he said deportation would have been a severe punishment for the 24-year-old that could have resulted in his death and was totally out of proportion with the crime.

Experts say the Supreme Court ruling is unlikely to lead to a flood of immigrants challenging past criminal convictions. For one thing, many of them have already been deported, and it is very hard to bring that type of challenge from another country, said Benita Jain, co-director of the Immigrant Defense Project, a New York-based nonprofit that has been advising criminal defense attorneys on the immigration consequences of various pleas for years.

Some immigrants will try to challenge their convictions based on claims of ineffective assistance of counsel, but the biggest effect of the ruling might be in the behavior of their attorneys. While most criminal defense attorneys have known that pleading guilty to certain charges might lead to deportation, they haven’t always taken the time to thoroughly research the consequences of a given plea.

Nick Nicholson, a criminal defense attorney in Lexington, Ky., said he used give immigrant clients generic advice that a guilty plea could have immigration consequences. Now he consults with an immigration attorney at his firm.

“When specialists require 20, 30, 40 hours to determine the (immigration) impact, I don’t see how the court can require us to know this,” he said. “But we’ll do it to the best of our ability.”