Justices’ ruling sparks conversation about PCR for noncitizens

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Two letters seemingly made the difference between immigration and deportation.

Before Angelo Bobadilla pleaded guilty to misdemeanor counts of theft and marijuana possession, his counsel marked “N/A,” not applicable, on an advisement that read, “If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. …” But unbeknownst to Bobadilla’s counsel, the then-teenager was not a U.S. citizen, making that advisement very much applicable to his situation.

A Mexican immigrant, Bobadilla had lived in the United States for most of his life at the time of his plea in 2016, and he was a “Dreamer” under the Deferred Action for Childhood Arrivals program. But because his counsel was not aware of his immigration status — and because he pleaded to a 365-day suspended term — Bobadilla’s convictions later formed the basis for his deportation from the country.

Earlier this month, a 3-2 majority of the Indiana Supreme Court granted post-conviction relief to Bobadilla, finding deficient counsel performance and prejudice. But dissenting justices raised concerns about the ruling inappropriately expanding the PCR analysis, and the decision has sparked a conversation about the information defense counsel should be required to know about their clients.

The major takeaway, attorneys say, is that assuming a client’s immigration status is never advisable. The majority opinion, authored by Justice Christopher Goff, said as much in the March 5 ruling in Angelo Bobadilla v. State of Indiana, 19S-PC-128.

Though dissenting justices Mark Massa and Geoffrey Slaughter expressed concerns about Bobadilla unnecessarily expanding the prejudice analysis under Strickland v. Washington, 466 U.S. 668 (1984), practitioners say they don’t see those concerns playing out. Instead, immigration and criminal defense attorneys are praising Bobadilla as a ruling that brings clarity to the complex world of immigration and criminal defense law.

Seeking relief

Bobadilla was arrested in March 2016 for stealing T-shirts and underwear from Walmart and subsequently being found with marijuana in his possession. During PCR proceedings the following year, his counsel said he mistakenly assumed Bobadilla was a citizen because he didn’t recognize his name as having a Hispanic origin. Additionally, the trial judge noted the defendant did not speak with an accent and could read and understand English.

Bobadilla was deported sometime after the May 2017 denial of his PCR petition — which did not reach the prejudice prong of the Strickland analysis — but his case still proceeded on appeal. A divided Indiana Court of Appeals affirmed the PCR denial, specifically finding no prejudice.

In reversing both lower courts, the Indiana Supreme Court determined Bobadilla’s counsel was deficient when he marked “N/A” without asking his client about his immigration status. The court based its holding partially on the U.S. Supreme Court decision in Padilla v. Kentucky, 559 U.S. 356 (2010).

Turning to the prejudice prong, the majority noted Bobadilla said he would have taken a “different approach” to his plea had he known about the risk of deportation. That statement, considered under the totality of the circumstances, showed the defendant would have proceeded to trial had he known about the immigration consequences of a plea deal, the majority held.

According to the record, Bobadilla’s whereabouts are currently unknown, a fact the dissent said could potentially making the relief “meaningless.”

Making assumptions

Whereabouts aside, attorneys say the majority’s advice to always ask about clients’ immigration status could have benefits beyond Bobadilla’s case.

Ann Sutton, chief counsel for the Marion County Public Defender Agency, noted it could be easy to mistake a Canadian for an American citizen. But like Bobadilla, a Canadian could be exposed to adverse immigration consequences through a plea deal, so it would be necessary for counsel to know the Canadian’s immigration status in the United States.

munoz-kevin-mug Munoz

Kevin Munoz, the Indianapolis immigration attorney who represented Bobadilla during PCR proceedings, agreed, saying it takes roughly three seconds to ask a client if they are a citizen. And in a statement to Indiana Lawyer, the Indiana Prosecuting Attorneys Council said asking about clients’ citizenship is a “best practice,” though IPAC noted the Bobadilla majority did not make such questioning a mandate.

Even so, IPAC said obtaining information about defendants’ immigration status will help ensure the integrity of guilty pleas.
Unfairly expanding?

Calling Bobadilla’s situation a “seductively sympathetic case,” the dissent raised questions about the majority “alter(ing) the rules with little chance that anyone will benefit.” Massa’s concerns were based on the fact that Bobadilla’s whereabouts are unknown, according to the record, and the fact that Bobadilla did not explicitly say he would have gone to trial had he known about the deportation risk. But in its statement, IPAC said it views the majority’s holding as narrowly focused on the facts of this case — specifically, deficiency and prejudice based on counsel’s “N/A” marking. Munoz agreed the ruling had a narrow focus, but also said the decision provided a necessary update to caselaw surrounding the Strickland prejudice analysis.

Previous caselaw allowed judges to take a cost-benefit approach to the prejudice prong, Munoz said. Under that approach, judges often did not find prejudice given the benefits defendants reap from plea agreements, he said. The majority of the Court of Appeals relied on similar reasoning to uphold the denial of Bobadilla’s PCR petition.

But under the analysis laid out by the majority justices, Munoz said courts can now consider what a rational defendant would have done under the totality of the circumstances. Here, Bobadilla had a family in Hamilton County and had very little connection to Mexico — circumstances Munoz said are present in many immigration cases.

“A rational person wouldn’t sign a probation plea to be deported when they have kids and community ties,” he said.

Slowing down

hinshaw-angka-mug Hinshaw

Sutton likewise was pleased Bobadilla eliminated what she viewed as “limitations” in the PCR prejudice analysis and said her office has launched a new immigration initiative to help avoid prejudice to defendants on the front-end. Angka Hinshaw was recently named the immigration supervisor for the Public Defender Agency, a position she will use to consult with noncitizen defendants and their attorneys.

Those consultations will allow attorneys to speak with Hinshaw about the potential consequences of a noncitizen client’s convictions, Hinshaw said, and knowing the client’s immigration status is key to her ability to provide accurate advice. She and Sutton noted that in Bobadilla’s case, had he pleaded to one day less — 364 days versus 365 — he likely wouldn’t have been deported based on the plea.

“With low-level offenses, defendants are eager to resolve it quickly and get back to work,” Hinshaw said. “… But counsel needs to slow down and say, ‘Let’s slow down and look at this and decide together what you think is best.’”

lykins-dallin-mug Lykins

As the former chair of the Indiana State Bar Association’s Latino Affairs Committee, Dallin Lykins said the Bobadilla decision underscores an important principle for all lawyers: know what you don’t know.

As an immigration attorney, Lykins said he consults with criminal defense attorneys when his clients present issues that are outside of his legal expertise. Likewise, the Lewis Kappes associate said criminal defense attorneys who are representing noncitizens should know who to call when their clients have immigration questions.

“It’s a helpful reminder to all of us,” Lykins said. “If it’s an area we don’t always practice in and something comes up, don’t be afraid to ask.”•

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