On July 28, 2010, United States District Judge Susan Bolton issued a preliminary injunction that prevents Arizona from enforcing portions of its now infamous legislation, S.B. 1070.  While the injunction does not prohibit enforcement of all sections of the law, the injunction does prohibit enforcement of the most controversial sections.

As Klasko previously reported, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity.  The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration.  The law makes the failure to carry immigration documents a crime and it gives the police power to detain anyone suspected of being in the country illegally.

In her opinion granting the preliminary injunction, Judge Bolton stated that the United States is likely to succeed on the merits that several sections of S.B. 1070 are preempted by federal law.  Specifically, Judge Bolton enjoined Arizona from enforcing Section 2(B) of S.B. 1070, which requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.”  This section of the law has been heavily criticized that it allows Arizona law enforcement to engage in racial profiling. 

Judge Bolton also enjoined Section 3, which makes it a crime for “the failure to apply for or carry alien registration papers,” and Section 5, which makes it a crime “for an unauthorized alien to solicit, apply for, or perform work.”  Finally, Judge Bolton enjoined Section 6, which authorizes “the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.” Judge Bolton further explained that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.” 

Now that the Court has decided on the motion for preliminary injunction, the lawsuit will proceed to a hearing on the merits of the case, and Judge Bolton will decide whether Arizona’s law as a whole is preempted by federal law.  While the case proceeds, Arizona is stopped from enforcing the above provisions by Judge Bolton’s preliminary injunction.

On March 31, 2010, the Supreme Court of the United States held that criminal defense counsel has a 6th Amendment obligation to inform a non-citizen client of the immigration consequences of a guilty plea, and to advise when the immigration consequences are clear. The case, Padilla v. Kentucky, 559 U.S. ___ (March 31, 2010), marks a major change in criminal defense counsel’s obligation to alien clients, and is particularly important for non-citizens facing immigration problems because of Pennsylvania criminal convictions.

Padilla, a lawful permanent resident of the U.S. for over 40 years, plead guilty to transporting a large amount of marijuana in Kentucky. His crime was a deportable offense under 8 U.S.C. §1227(a)(2)(B)(i), like nearly all other drug trafficking offenses. During plea negotiations, Padilla claimed that his criminal defense attorney failed to warn him of the immigration consequences of such a guilty plea, thus making an ineffective assistance of counsel claim for post-conviction relief before the Kentucky Supreme Court.

The U.S. Supreme Court held that constitutionally competent counsel would have advised Padilla that his drug distribution guilty plea would result in his removal from the U.S. The U.S. Supreme Court stated that it had never applied a distinction between direct and collateral consequences to define the scope of reasonably professional assistance when measuring the effectiveness of counsel under the 6th Amendment.  The Court concluded that the weight of professional norms require that defense counsel advise on the deportation consequences of a conviction. The sources reviewed, including the American Bar Association, criminal defense and public defender organizations, authoritative treatises and state and city bar associations, all agreed that defense counsel should advise of the immigration consequences of a criminal conviction.

The United States Supreme Court’s decision in Padilla is particularly significant in Pennsylvania, where the Supreme Court has held, similar to Kentucky’s, that deportation is simply a collateral consequence of a conviction that cannot serve as the basis for a 6th Amendment claim to ineffective assistance of counsel in an action under the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-9551.

In Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989), the Pennsylvania Supreme Court held that a guilty plea was not subject to collateral attack, even though the defendant was not informed that he would face deportation as a result of the plea. The Pennsylvania appellate courts have ruled consistently that a defendant’s lack of knowledge about collateral consequences surrounding the entry of a guilty plea does not render the plea unknowing or involuntary. Padilla abrogates Frometa, so now criminal counsel’s failure to warn non-citizen defendants about deportation consequences of a guilty plea can no longer simply be dismissed as merely a “collateral consequence” of a conviction or plea.

Immigration counsel is essential to assess the deportation consequences when working with a non-citizen client to reach a plea agreement. Creative bargaining for a plea agreement under a different section of the statue, and for a specific maximum sentence, may save a non-citizen from deportation. Criminal defense counsel should consult an immigration attorney in order to render effective assistance under Padilla.