Juarez v. People of the State of Colorado: Is “Probably” Sufficient to Satisfy a Defense Attorney’s Duty to Give Clear Advice in the Face of Deportation?

JAE LYNN HUCKABA–One decade later, the major constitutional victory for noncitizens in Padilla v. Kentucky could be completely eroded by one Supreme Court decision. On July 30, 2020, the Harvard Law School Crimmigration Clinic filed a petition for writ of certiorari with the United States Supreme Court to review the Colorado Supreme Court’s decision in Juarez v. People of the State of Colorado. The petition asks the Court to consider whether defense counsel must advise a noncitizen defendant that a guilty plea will result in deportation as a matter of law when there is no dispute that such plea will trigger mandatory deportation under 8 U.S.C. § 1227(a).

In Padilla, a legal permanent resident and Vietnam War veteran faced deportation after pleading guilty to the transportation of a large amount of marijuana. His defense counsel advised him that he “did not have to worry about immigration status since he had been in the country so long.” Relying on this advice, Mr. Padilla plead guilty to the drug charges that made his deportation virtually mandatory. He alleged he would have insisted on going to trial if not for the incorrect advice from his counsel. Writing for the majority, Justice Stevens held,

“[W]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.”

Stevens highlighted the severity of deportation, relying on precedent equating deportation to banishment or exile, to emphasize how critical it is for defense counsel to advise noncitizen clients of the risk of deportation if the client were to accept a plea bargain.

Alfredo Juarez, a native of México, faced such exile on September 5, 2012, after being ordered deported pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Juarez came to the United States with his parents at a young age, attended school, and later built a family with his wife in Colorado. His wife, a United States citizen, had petitioned for him to receive legal permanent residency, and the petition was granted in 2009. Two years later, officers arrived at Juarez’s home in response to an alleged domestic dispute and forcibly entered the home without a warrant. Juarez was arrested. Officers conducted a search incident to arrest and found cocaine in Juarez’s possession. He was charged with one count of possession of a control substance.

John Tatum represented Juarez, securing several continuances as he tried to negotiate a plea agreement with the prosecution that would not implicate negative immigration consequences for Juarez. After consulting with Juarez’s prior immigration attorney, Tatum was well-aware that pleading guilty to any controlled substance offense other than a minor marijuana-related offense would trigger Juarez’s deportation. Tatum’s negotiations with the prosecution were unsuccessful, and he advised Juarez that accepting the plea to a misdemeanor offense would “probably result in deportation.” He did not advise Juarez that federal law would mandate deportation if Juarez accepted the plea. Consequently, Juarez plead guilty to a misdemeanor charge in exchange for the prosecution’s dismissal of the felony possession charge. Tatum’s advice did not convey to Juarez that the law compelled automatic deportation—the most crucial factor in Juarez’s decision to accept the misdemeanor plea agreement. This advice was constitutionally deficient because of its failure to unequivocally communicate that Juarez’s guilty plea would mandate his deportation.

Juarez v. People of the State of Colorado raises a crucial question left ambiguous in Padilla: whether noncitizen criminal defendants like Alfredo Juarez have a right to a higher standard of representation when conviction is likely to lead to deportation. Most jurisdictions have interpreted Padilla to require counsel to advise a noncitizen defendant that the conviction will either result in deportation or subject the defendant to “mandatory” deportation. However, in Juarez, the Colorado Court of Appeals held that Juarez’s representation was not constitutionally deficient. The court reasoned that a defense attorney’s advisement that his client was “probably” or “very likely” to be deported necessarily implies that the client is deportable. Therefore, the client is on notice that they would likely be deported for accepting a plea deal. The Colorado Supreme Court affirmed. To not require a defense attorney to advise a client that removal is presumptively mandatory where the law clearly articulates such a dictation, is misleading, disadvantageous, and inconsistent with the Padilla mandate. Unfortunately, courts are divided on the issue.

If the Supreme Court does grant the Harvard Crimmigration Clinic’s petition for certiorari, whatever decision they make would resolve the divide between federal circuit courts and state courts of last resort on this issue. The question presented not only arises frequently, but it also carries an enormous weight. Where a consequence as severe as deportation is concerned, courts and defendants alike should not have to operate within a standard of confusion and unpredictability. Supreme Court intervention would also provide defense attorneys with clear advisement guidelines where immigration consequences are implicated. Therefore, a clearer standard would likely result in less ineffective assistance of counsel claims, protecting both noncitizen defendants and defense attorneys.

Conversely, if the Supreme Court were to deny certiorari, noncitizen defendants in Colorado will continue to be disadvantaged by misleading advice from defense counsel on deportation. On a larger scale, if the Court affirms the Colorado Supreme Court’s decision, the Colorado Supreme Court’s incorrect application of the Padilla mandate would rob all future noncitizen defendants of their Sixth Amendment right to effective assistance of counsel. The Immigration and Nationality Act’s language is “succinct, clear, and explicit” on mandatory deportation, and Tatum’s advice should have been equally clear. If the Supreme Court refuses to intervene, or if they decide to uphold the Colorado Supreme Court’s ruling, they will completely undermine the constitutional protections afforded to noncitizen defendants.