Since 1996, lawful resident aliens have been subject to deportation if guilty of an "aggravated felony" as defined under the federal Immigration and Nationality Act. Competent defense lawyers for noncitizen clients have since then been alert to the consequences of convictions.
But unfortunately, not all lawyers are competent. In State v. Nunez-Valdez, 200 N.J. 129 (2009), our Supreme Court directed trial judges to inquire of resident aliens who waived their right to trial to make sure that each knew that "if your plea of guilty is to a crime considered an aggravated felony under federal law you will be subject to deportation/removal." The next year, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court declared an affirmative duty on defense counsel to advise their clients of the immigration consequences of a guilty plea.
Following Nunez and Padilla, many defendants subject to deportation sought to vacate their guilty pleas alleging ineffective assistance of counsel. Some 250 such cases were stayed while our Supreme Court considered the appeals. On Feb. 28, in State v. Gaitan and State v. Goulborne, the Court divided 5-2, holding that a defendant whose lawyer neglected to properly advise him of the deportation consequences of a guilty plea is entitled to postconviction relief only if the malpractice occurred after the landmark ruling in Padilla .
In the Gaitan majority's view, by imposing on defense counsel an affirmative duty to warn of the deportation consequences of a guilty plea, the U.S. Supreme Court broke new ground not compelled by Sixth Amendment precedent. As a consequence, the majority held, defendants whose counsel fell short of the Padilla standard before it was decided are not entitled to relief.
Justice Barry Albin, joined by Virginia Long, dissented, arguing that "with reference to the 1996 amendments the majority concludes that it is 'particularly important now for criminal defense attorneys to be able to, at a minimum, secure accurate advice for their clients on whether a guilty plea to certain crimes will render them mandatorily removable.' But then why was it not important in 2005 [when Gaitan pled guilty], nine years after the effective date of the amendments, for a noncitizen to receive advice about the immigration consequences of a plea?"
Albin therefore rejected the majority's ruling that Padilla created a new constitutional rule. Any "minimally adequate defense attorney has long known" to advise the client of the immigration consequences of conviction of a crime, he declared.
Our state Supreme Court held in Nunez that "it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea." Padilla was the logical next step: No advice is no better than bad advice. The common principle is plain enough: Defendants who waive their rights should know the consequences, whether penal or collateral. The Gaitan majority's holding, that Padilla was a fundamental breakthrough imposing a new duty on lawyers, is unpersuasive. The concept of competent assistance of counsel has long been plain enough to guide defense attorneys to advise their alien clients of the drastic collateral consequences of a conviction.
The rejection of retroactivity is surprising because the newly clarified duty is imposed on defense attorneys, not on government actors who relied on an old rule. And the issue is a profound one: the fundamental fairness of the judicial process promised by the adversarial system enshrined in the Sixth Amendment. Fortunately, the Third Circuit has held in favor of retroactivity. The Seventh and Tenth have ruled against it.
The Gaitan/Goulbourne ruling lets courts lift the stay on more than 250 postconviction relief cases and dismiss the PCR petitions pending in trial courts that had been bound by the Appellate Division's embrace of "pipeline" retroactivity. With convictions reinstated, deportations will inevitably follow for defendants like Goulbourne, who is free on bail. The majority acknowledged that the Padilla retroactivity issue "is a challenging one." We understand that the state attorney general will not oppose an application to extend the stays, effectively keeping the matters alive if dormant, while we await the inevitable U.S. Supreme Court ruling to resolve the conflict among the circuits. That is the right thing to do.