It started as a request for a travel permit.
Angelo Bobadilla, then a 19-year-old “Dreamer” living in the United States, wanted to use his status under the Deferred Action for Childhood Arrivals program to travel to his home country of Mexico. Bobadilla had lived in America for most of his life, be he still had family across the border he wanted to visit.
But as Emma Mahern, a lawyer with Munoz Legal in Indianapolis, reviewed Bobadilla’s legal history, she realized he had a bigger concern than taking a trip south. A recent plea agreement to misdemeanor theft and marijuana charges had made him a “high priority for deportation.”
Mahern, along with fellow Munoz Legal attorneys Kevin Munoz and Angela Joseph and solo practitioner John Tompkins, discussed how Bobadilla’s misdemeanor convictions led him to immigration court and the Indiana Supreme Court during a Thursday session of the Indiana State Bar Association Annual Meeting.
All four attorneys worked in some capacity on the case that would become State v. Bobadilla, 117 N.E.3d 1272 (2019), where a majority of the Indiana Supreme Court granted post-conviction relief on Bobadilla’s misdemeanor convictions. The basis of his relief was the fact that his trial counsel had marked “N/A” next to a plea advisement reading, “If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation … .”
Bobadilla’s “problem,” Tompkins said, was that he was indistinguishable from an American citizen. Tompkins said he knows Bobadilla’s trial counsel, so he knows the “N/A” error was not a careless oversight.
“If somebody with that much experience who works that hard can make a mistake, it impressed upon me how much ineffective assistance doesn’t just mean inexperience,” Tompkins said. “It doesn’t just mean not trying. It means an honest mistake that led to a horrible outcome — and we can fix it.”
Indeed, the trial attorney admitted at the initial PCR hearing that he had been ineffective in filling out the advisement form. Nevertheless, both the Hamilton Superior Court and Indiana Court of Appeals denied Bobadilla’s request for relief.
Bobadilla’s situation became more precarious when he committed a probation violation. Plus, the theft charge — which was premised on his action of stealing T-shirts and underwear from Walmart — was considered an “aggravated felony,” so when Bobadilla was placed in immigration custody, the government’s initial plan was to administratively remove him without a hearing before an immigration judge.
Munoz convinced a deportation officer to issue Bobadilla a notice to appear, rather than administratively removing him, which placed Bobadilla in immigration custody pending a hearing before an immigration judge. The goal, Joseph said, was to buy some time, but then the Court of Appeals upheld the PCR denial.
After the denial of relief on appeal, Bobadilla was brought for a hearing before a Chicago immigration judge. Joseph acknowledged Thursday that the case she made before the judge was weak, and she said the judge initially told Bobadilla’s team she could not grant asylum.
“I said, ‘Judge, I understand that, but we are here over a pair of boxers and some marijuana,’” Joseph recalled. “’I don’t know what to do, but this kid doesn’t deserve to go back to Mexico.’”
Though the fate of the DACA program was uncertain given the country’s political landscape, it was DACA that ultimately kept Bobadilla from removal. Though court records have indicated Bobadilla was, in fact, deported, Munoz said his client served about a year in immigration jail.
From there, Joseph worked with government lawyers, and Bobadilla’s immigration case was ultimately terminated — a result Munoz called a miracle. Asked by an audience member why the government decided to terminate the case, the attorneys pointed to several factors.
First, Joseph said, there was evidence that Bobadilla’s legal team was actively seeking relief in state court. His petition to transfer the PCR case was still pending while the immigration case was unfolding.
Second, there was an emotional element to the immigration proceedings, Joseph said, with both Bobadilla and his father crying throughout the hearing.
Third, Mahern said their team was lucky, because the government lawyer who appeared in the Chicago court was actually a supervisor, not the opposing counsel they expected to work with. That supervisor had more discretion on how to dispose of the case, she said.
And finally, the nuances of DACA worked in Bobadilla’s favor, because his convictions did not actually make him ineligible for the program, Mahern said.
The case eventually proceeded to the Indiana Supreme Court, where Justice Christopher Goff wrote for the majority, which included Chief Justice Loretta Rush and Justice Steven David. Their decision was based partially on Padilla v. Kentucky, 559 U.S. 356, 373 (2010), where the United States Supreme Court held that “‘advice regarding deportation’ falls within ‘the ambit of the Sixth Amendment right to counsel.’”
Justice Mark Massa, joined by Justice Geoffrey Slaughter, dissented, saying judges, not lawyers, should be tasked with “a requirement to inquire with or to advise unapparent non-citizens.” He also said Bobadilla’s assertion that he would have taken a different approach to his case had he known about the deportation risk was not sufficient for the prejudice prong of Strickland v. Washington.
Though the decision is less than a year old, Tompkins said it’s already making an impact, even retroactively, with criminal decisions being vacated in light of the Bobadilla holding.
In discussing the “legally related consequences” of criminal law — here, deportation — Tompkins urged attorneys to think outside of immigration terms. Pilots, for example, and even lawyers can lose professional or specialized licenses if they find themselves in legal trouble.
“It doesn’t have to be immigration. That’s what I want to stress about the concept of Bobadilla,” Tompkins said. “Bobadilla’s facts are compelling. They’re a demonstration of how horrible the impact can be — loss of your own freedom … because you didn’t ask, ‘Does this apply to you?’
“But if you have an insurance salesman who’s supporting two kids, like a lot of us going paycheck to paycheck, and all of a sudden he finds out, because his lawyer didn’t ask him if he has any special licenses that might be affected by a conviction or an arrest and pleads him guilty without going through that questioning — this isn’t immigration. This is still a legally related consequence, and this is still ineffective assistance,” Tompkins continued.
As a general rule, Mahern urged criminal lawyers to ask just one question of their clients: “are you a U.S. citizen?”
“Not, ‘Are you legal?’ Not, ‘What’s your status?’” Mahern said. “… Now, if the answer is no, you don’t need to go too much further into their immigration situation.”
Instead, the attorneys agreed that the best thing a criminal attorney can do is to point their client toward an immigration lawyer. To demonstrate this point, Mahern read a passage from Justice Samuel Alito’s concurrence in Padilla.
“A conviction may have an immigration consequence. Immigration law is a specialized field. I am not an immigration lawyer. You should consult an immigration specialist,” Mahern said, quoting Alito. “That’s what I think everyone should be saying.”