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Across the Border, Over the Line—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published on newyorktimes.com on April 8, 2010.

Across the Border, Over the Line
By Linda Greenhouse ’78 MSL

The Supreme Court’s ruling recently that lawyers have a duty to warn their noncitizen clients about the potentially disastrous immigration consequences of pleading guilty to a criminal charge seemed so sensible that it left me wondering why a question with such an obvious answer needed to be debated by the Supreme Court in the first place. Surely if the Sixth Amendment’s guarantee of effective assistance of counsel means anything, it means that lawyers must advise their clients that admitting to even a minor offense can earn a noncitizen a quick one-way ticket into what immigration law delicately calls “removal proceedings.”

Before anyone objects that such individuals have no right to be in the country in the first place, I should make clear that today’s harshly anti-immigrant legal regime applies not only to the undocumented, but to permanent legal residents as well. Jose Padilla, the Honduran-born petitioner in the recent case, has lived legally in the United States for 40 years and served honorably in the military during the war in Vietnam. (This is a different Jose Padilla, not the American citizen whom the Bush administration held in a Navy brig as an enemy combatant for more than three years before he was convicted in federal court on charges of conspiring to commit terrorist acts.)

Granted, this Mr. Padilla is no saint either; he was caught in Kentucky at the wheel of a tractor-trailer loaded with 1,000 pounds of marijuana. Clearly, either a guilty plea or a conviction after trial would result in a prison sentence. But when Mr. Padilla asked his lawyer what a guilty plea would mean for his immigration status, the answer was that he “did not have to worry about immigration status since he had been in the country so long.” Bad advice. He pleaded guilty, served the negotiated five-year sentence, and found himself facing deportation as a criminal alien.

Despite winning his Sixth Amendment point, Mr. Padilla may well end up being deported; the court’s 7-to-2 decision in Padilla v. Kentucky requires him to now prove that he was actually “prejudiced” by the lawyer’s bad advice —that is, that it actually made a difference. That requirement may be hard to meet, given the facts and the law. Deportation after almost any drug offense by a noncitizen is essentially automatic, as Justice John Paul Stevens observed in his majority opinion. Precisely because the law is so clear on this point, “this is not a hard case,” Justice Stevens said, for concluding that the lawyer’s advice was constitutionally deficient.

To return, then, to my initial question, what was such an easy case doing at the Supreme Court? The quick and obvious answer, of course, is that not everyone sees it that way. Indeed, Justice Stevens’s opinion imposing an affirmative obligation on lawyers won the full support of only four other justices, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

The Kentucky Supreme Court decision that the justices overturned held that deportation is simply a “collateral consequence” of a criminal conviction and that, as a civil proceeding, it does not even implicate the Sixth Amendment right to counsel. The Obama administration filed a Supreme Court brief agreeing with Kentucky that the lawyer had no obligation to advise Mr. Padilla on immigration matters; however, the brief, by Solicitor General Elena Kagan, went on to say that a lawyer who chooses to give advice is at least obliged to get it right. This middle position against “affirmative misadvice” was endorsed by Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr., whose concurring opinion provided a sixth and seventh vote for overturning the Kentucky decision. Justices Antonin Scalia and Clarence Thomas dissented. The Constitution “is not an all-purpose tool for judicial construction of a perfect world,” Justice Scalia wrote.

So yes, this case engendered a debate over the proper interpretation of the Sixth Amendment, and that is explanation enough for its route to the Supreme Court. Perhaps, as a matter of constitutional doctrine, it wasn’t such an easy case after all. But I’m looking for a deeper answer. That it took the Supreme Court in 2010 to tell us that non-citizens are entitled to be made aware of the full dimensions of their legal peril should be understood, I think, as a kind of wake-up call. In this nation of immigrants and their descendants, we have become so obsessed with rooting out, locking up and packing off those whom we decide should not be permitted to remain among us that we are in danger of losing a moral center of gravity.

If that sounds like hyperbole, re-read three articles by Nina Bernstein that appeared in The Times last week: “Disabled Immigration Detainees Face Deportation,” “How One Marijuana Cigarette May Lead to Deportation” and “Rushed From Haiti by U.S., Then Jailed for Lacking Visas.” Each was more painful to read than the last. A 50-year-old legal resident with schizophrenia, arrested in New York City for trespassing, abruptly transferred to an immigration prison in southern Texas to face deportation without the assistance of a lawyer or notice to his family? Dozens of Haitians, evacuated from the earthquake and waved onto military transport planes by United States Marines, locked up for months in a private immigration jail despite the suspension of all deportations to Haiti and the existence of relatives willing to take them in? (They were released the day the article appeared.) What on earth is going on here?

That question evidently occurred to Justice Ginsburg during an argument last week in Carachuri-Rosendo v. Holder, a case mentioned in Ms. Bernstein’s article about a single marijuana cigarette leading to deportation. Jose Carachuri-Rosendo, a legal United States resident born in Mexico, father of four children who are United States citizens, was arrested in Texas in 2004 for possession of less than two ounces of marijuana, a misdemeanor under Texas law. He pleaded guilty and was sentenced to 20 days in jail.

The next year, he was arrested for possession of a tablet of Xanax, a common anti-anxiety drug that requires a prescription, which Mr. Carachuri-Rosendo did not have. That offense, also a misdemeanor in Texas, earned him 10 days in jail. Under the federal government’s interpretation of the Immigration and Nationality Act, the combination of those two state-law misdemeanors amounts to an “aggravated felony.”

As an aggravated felon, the government argues, Mr. Carachuri-Rosendo is not only subject to deportation, but categorically ineligible for “cancellation of removal,” a form of administrative discretion that provides the only remaining safety net to immigrants caught in the deportation net.

During the argument on March 31, Justice Ginsburg had this to say to Nicole A. Saharsky, a lawyer from the solicitor general’s office:

“Here we are talking about two crimes. One is a small amount of marijuana. He gets 20 days in jail. The other is a pill that I never heard of, a Xan-something, and he gets what, 10 days in jail for that. If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say ‘Never, ever darken our doors again’ because of one marijuana cigarette and one Xan-something pill — it, it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute ….”

“What controls is Congress’s judgment,” Ms. Saharsky replied, “and Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens.”

That would be the same Congress that spent months tied up in knots over how conclusively to prohibit insurance coverage for abortion under the new health care legislation, ostensibly out of concern for the unborn. Maybe someday, members of Congress will display the same concern for those who happened to have been born, but on the wrong side of the border. Maybe, just maybe, the Supreme Court will show the way.