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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 deporation 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.
STEP 1: Immigration and Criminal History: The first step to adequately counseling a noncitizen defendant is to determine their immigration status, including both their current status and any facts pertinet to eligibility for relief from removal. Counsel must also determine the defendant's complete criminal history at this stage. Though to a certain extent counsel will have to rely on their client's recollection, it is also a good idea to verify the information provided when possible. For example, if a client reports they are a lawful permanent resident (LPR) but cannot produce their LPR card, counsel should consider the possibility that the client is not an LPR when assessing the case.
STEP 2: Analyze immigration consequences: Based on the information gathered about the defendant's immigration status and criminal history, counsel must analyze the immigration consequences of the potential plea and/or a conviction on the charges the defendant is facing. In some cases, this analysis will be straightforward, while in others it will be complex and may need to be reevaluated multiple times throughtout the case as plea offers or other possible resolutions evovle. The analysis must incorporate all "specific statutory consequences" including removability, inadmissibility, ineligibility for relief from removal, mandatory detention during immigration proceedings, denial of naturalization, and consequences for immediate family. Morales Diaz, No. 15-0862 at 14-15.
STEP 3: Advise client of immigration consequences: Importantly, Padilla is clear that silence on advising the client of immigration consequence constitutes ineffective assistance of counsel. Padilla v. Kentucky, 559 U.S. at 370. Merely advising a defendant to seek immigration counsel is effectively equivalent to silence and is inadequate, because that advice, or lack thereof, does not inform the defendant of the potential immigration consequences they face. Morales Diaz, No. 15-0862 at 11-15; Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
STEP 4: After advising client, determine their priorities in resolving their case: Finally, after advising the defendant, counsel must ascertain the defendant's priorities in resolving the case and defend the case accordingly. Padilla, 559 U.S. at 373. If the defendant's priority is a good immigration result, they may be willing to accept a less-favorable resolution of the criminal case to achieve that goal. Defense counsel must therefore be aware of the options for resolving cases in an immigration-safe way. And because some of these resolutions may seem counterintuitive, defense counsel should be vigilant in protecting the defendant's priorities and explaining to judges and prosecutors why those priorities require a particular approach to resolving the case.
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 continously 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 resouces available to you at no cost for questions you may have with regards to immigration law.
The following Iowa attorneys have agreed to have their contact information made available to contract attorneys with immigration questions working on Indigent Defense cases.