Legal Excess for Criminal Aliens

By James R. Edwards, Jr. on April 5, 2010

The U.S. Supreme Court blundered in its recent ruling in Padilla v. Kentucky, so look out for two things to follow on its heels: lots of immigrant criminals will go for – and get – a second bite at the judicial apple, and activist lawyers and ethnic advocacy groups could well rush to push the envelope of criminal alien legal rights.

The unique aspect of this case is that it predominately involves a criminal law issue with an immigrant defendant. It's not an immigration case. That's likely why the court went the direct of this opinion by a big margin. The judiciary in general acts in a more constrained manner in immigration law, strong precedent recognizing that the legislative branch – Congress – enjoys plenary power over immigration policy. Unfortunately, the Padilla decision smacks of the Ninth Circuitization of the high court. Judicial activism flourishes in the Left Coast's federal appellate court, and one hopes this disease won't infect the Supremes any more than it already does.

Jose Padilla (not the enemy combatant), a California truck driver, emigrated from Honduras nearly 40 years ago. He served in the U.S. Army during the Vietnam War. Padilla pled guilty to hauling a sizeable stash of marijuana. In other words, this former combat soldier, lawful immigrant, and truck driver made a conscious decision to profit personally by breaking our narcotics trafficking laws and helping supply both street-level pushers and potheads. This was, in fact, an aggravated felony. He consciously chose to put his liberty, his American dream, and his previous admirable qualities at risk to make a buck. Padilla got caught and pled guilty to drug trafficking charges in Kentucky. He asked his lawyer if pleading guilty would affect his lawful permanent resident status. The attorney indicated it shouldn't because he'd been in the United States as long as he has.

By a 7-2 decision, the U.S. Supreme Court overturned the Kentucky Supreme Court's ruling (which, in my opinion, reached the right conclusion and, furthermore, which the U.S. Supreme Court should have respected). The twist in this case extends counsel's advice obligations to all sorts of "collateral issues" such as how one's immigration status might be affected by admitting guilt.

Now, thanks to the high court, every criminal defense lawyer with a foreign-born client could have committed the legal sin of "ineffective counsel" – not warning that aliens who plead guilty to certain criminal offenses face removal. Thus, here comes the tidal wave of a type of reverse double jeopardy – against society, taxpayers, and crime victims. As Justices Antonin Scalia and Clarence Thomas wrote in dissent, "In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world." Sadly, judicial utopianism triumphs once again in the rarified air of the Supreme Court.

Congress has steadily adopted practical and prudent measures to ensure that the nation rids itself of imported criminals. Things aren't great today, but we've made progress since the landmark 1990s antiterrorism and immigration laws. Rep. Lamar Smith pointed out the problem in a 1995 House immigration subcommittee hearing: ". . . [T]he deportation system fails to close the loopholes that thwart removing all illegal aliens. . . . [T]he deportation system permits abuse of the process. At the end of their hearings, many deportable aliens are given the privilege of 'voluntary departure,' . . . but we have no way to ensure that these people actually leave this country. Aliens also abuse the forms of relief that are intended for those who have resided for long periods in the United States."

At a subsequent hearing in 1996, Rep. Smith noted the abuse of judicial discretion that was on the rise in the first Clinton administration: "Over the past year and a half, there has been a noticeable trend in Board of Immigration Appeals decisions to expand relief from deportations for both criminal aliens and long-term illegal aliens. This has occurred both in reported precedent decisions and in unreported decisions. Congress has permitted illegal aliens to be eligible for relief from deportation under narrow circumstances of unique humanitarian interest. Over the years, some federal courts, particularly in the ninth circuit, have expanded the eligibility criteria so that these forms of relief are considered by some to be an entitlement." The exact same mentality of judicial arrogance and caprice shines through in the Padilla decision.

The 1996 IIRIRA law, combined with the 1996 antiterrorism law, listed additional crimes for which an alien could be deported. The laws also reduced judicial review, by which aliens and judges alike gamed the system to beat the deportation rap. Judicial discretion was pared back, on account of the kinds of trends Rep. Smith noted above. But judges gained the authority to order deportation in connection with probation or a plea agreement. Of course, activist groups hated all this.

Hence, the Padilla ruling, while not directly an immigration ruling, will likely encourage immigrant rights organizations to seek more judicial activism. They'll use that favorite tactic of the Left, litigating policy changes they can't achieve (at least not as quickly or easily) by legitimate legislative means. Also, the court's commitment to respecting Congress's plenary powers over immigration will become clear in the Carachuri-Rosendo case, which the Supremes heard this past week. The criminal in question is a recidivist, now facing removal under IIRIRA's aggravated felony provisions for drug possession. Whether the court encroaches on Congress's jurisdiction or upholds the deportation after a guilty plea, as we wrote IIRIRA to do, could tell a lot about how aggressive a legislate-from-the-bench strategy the immigrant advocates pursue.