Padilla – Bring Back the JRAD?

Thanks to a healthy dose of jet lag (My wife and I just returned from walking on the Great Wall of China a few days ago!), I finally found the time to read the Supreme Court’s new decision in Kentucky v. Padilla.

Although I was impressed that Justice Stevens, in the majority opinion, found that y criminal defendants who are not U.S. citizens have a 6th Amendment right to be informed by their criminal counsel as to the immigration consequences of pleading guiltto a particular crime, it struck me that the most likely effect of this decision may be for criminal attorneys to have each client sign a statement saying something like “I understand that by agreeing to plead guilty (or nolo contendre) to the above offense, I may be exposing myself to removal from the United States.”

Of course, the majority did differentiate between convictions where the deportation consequences are “clear” and where they are “unclear or uncertain”.  Here’s the key quote:

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“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”  

Of course, reasonable minds may disagree as to what is “clear” or “truly clear” and what is “unclear or uncertain”. Can you imagine a criminal attorney having to discuss the “categorical” approach versus the “modified categorical” approach with an immigrant client, perhaps in Spanish or Chinese? Most immigration attorneys have trouble discussing such issues in English!

How about contrasting “removability” with “inadmissibility” and “212(c)” with “cancellation of removal”? 

Isn’t there going to be a lot of people with 20-year-old convictions filing habeas petitions?

Fortunately, Justice Stevens reminded me of something that hadn’t crossed my mind in decades: the JRAD. For those of you who think that JRAD was a character in the first Star Wars trilogy, please allow me to explain that it is actually a “Judicial Recommendation Against Deportation”. I had forgotten about it since my INS Trial Attorney days in the early 1980s. Armed with a JRAD by a state or federal judge, a person could not be ordered deported because of a criminal conviction.

Seems to make a lot of sense to me. The Trial Judge is the person who knows about the defendant and his culpability. If he issued a JRAD, then the IJ doesn’t have to concern himself or herself with any “modified” or “unmodified” mumbo-jumbo.

This, however, is only one man’s opinion.