On June 9, 2017, the Iowa Supreme Court issued a decision in Roberto Morales Diaz v. State of Iowa that clarified the scope of criminal defense counsel's duty to advise noncitizen clients of the immigration consequences of their guilty pleas and convictions. The Iowa Supreme Court's clarification comes after the U.S. Supreme Court's 2010 ruling in Padilla v. Kentucky that stated criminal defense attorneys must expand their knowledge to the area of immigration law in order to inform criminal defendants of immigration consequences as a result of their criminal conviction. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Though the Iowa Supreme Court's decision set a higher bar than many previously assumed, our office is working to provide attorneys the resources to comply with the Court's ruling.
The Iowa Supreme Court's ruling has two important components. First, upon review of the "prevailing professional norms" in this area, the Court concluded that competent counsel must advise a noncitizen defendant of all "specific statutory consequences" associated with a plea and/or conviction, and that confining advice to the question of deportation is inadequate. Morales Diaz No. 15-0862 at 14-15. The "statutory consequences" include removal, exclusion, ineligibility for relief from removal, mandatory detention during immigration proceedings, denial of naturalization, and consequences for immediate family. Id., citing ABA Standards for Criminal Justice: Prosecution Function and Defense Function 4-5.5 (4th ed. 2015).
Second, the Court clarified the "clear" versus "unclear" consequences dichotomy established in Padilla, which had been understood by many attorneys to limit the scope of their duties. The Court held that the distinction "relates only to whether the crime charged is a crime covered under the immigration statute." Morales Diaz, No. 15-0862 at 10.
Morales Diaz requires defense counsel to "embrace his or her new role as a 'crimmigration' attorney." Morales Diaz, No. 15-0862 at 8. This role requires defense counsel to gather detailed information relevant to the client's immigration status, competently research and analyze the possible immigration consequences of the client's case, and fully and accurately advise the defendant of those consequences so that the client can make an informed decision.
Our office certainly understands that many attorneys may not be currently equipped to "embrace his or her new role as a 'crimmigration' attorney" as required by the Court. However, current statutes, coupled with limited resources and budget, are restrictive with regards to assigning multiple attorneys to a case and paying fees for expert witnesses.
Currently, the statutes and rules governing indigent defense prohibit the SPD from paying more than one attorney on all cases except A felony cases. Iowa Code § 815.7(5) (2017) (stating only one attorney fee shall be so awarded in any one case exception that in class "A" felony cases); see also Iowa Code § 815.10(1)(b)(indicating an indigent person is entitled to the appointment of one attorney in all cases, except A felony cases).
Fees for expert witnesses payable from the indigent defense fund are those experts retained as witnesses that may testify at trial. Iowa Code § 815.4; see also Iowa R. Crim. P. 2.20(4) (authorizing payment for expert witnesses for indigent defendants) see also IAC 493 - 12.7(1) (authorizing the payment of fees incurred by expert witness). The fund cannot provide fees for an expert to inform defense counsel of the immigration consequences of a particular criminal proceeding of disposition.
In Morales Diaz, the Court recognized the "new resources [that] have emerged to assist the defense bar in this growing responsibility, including quick-access charts, frequently asked questions and answers, opportunities for legal training, and free consultations with immigration experts." Morales Diaz, No. 15-0862 at 7. Below are resources available to criminal defense attorneys with immigration questions. Our website will be continuously be updated as our office grows the quality and quantity of free resources available to you.
While you, as the court-appointed attorney, retain ultimate responsibility for properly advising, counseling, and representing your client, below are some resources available to you at no cost for questions you may have with regards to immigration law.
SPD Immigration Contacts
The following Iowa attorneys have agreed to have their contact information made available to contract attorneys with immigration questions working on Indigent Defense cases.
- Julia Zalenski, Assistant State Public Defender - Iowa City Office, Phone (319) 800-4186, e-mail email@example.com.
- David Brooks, Assistant State Public Defender - Council Bluffs Office, Phone (712) 828-7479, e-mail firstname.lastname@example.org.