Landmark Decision, VA Supreme Court: Immigration Consequences of Crimes

March 10, 2015

Virginia Supreme Court Issues Landmark Decision about Immigration Consequences of Crimes and Constitutional Obligations of Criminal Defense Attorneys

By: Heidi Altman

When non-citizens face criminal charges in the United States they also face a minefield of immigration consequences, many of which are vastly disproportionate to the alleged offense. What type of immigration penalties flow from even minor criminal convictions? The list includes mandatory no-bond immigration detention, deportation and permanent separation from U.S. citizen family members, ineligibility for citizenship and other immigration benefits such as a green card, and the inability to travel internationally.

"Zemene articulates a broad view of an attorney’s obligation to investigate a client’s immigration history, advise her client about immigration consequences, and attempt to negotiate a plea bargain that avoids negative immigration consequences." - CAIR Coalition Practice Advisory

The Case of Michael Zemene

Last month, the Supreme Court of Virginia considered the case of Michael Zemene, a long time lawful permanent resident (a.k.a. “green card holder”) of the United States who was arrested on allegations of shoplifting beer valued at $33. Although his sentence for this offense involved no actual jail time, the conviction triggered immigration detention and deportation proceedings. Ultimately, the government stripped Mr. Zemene of his green card and left him in limbo with a temporary form of protection from deportation accorded him because of the danger he faced on return to Ethiopia. Mr. Zemene asked the court to vacate his conviction, arguing that he was denied the effective assistance of counsel when his defense attorney failed to advise him that the conviction might impact his immigration status and failed to attempt to negotiate a plea deal that might have spared his green card. The Supreme Court of Virginia agreed with Mr. Zemene.

Implications of Zemene v. Clarke

This decision, Zemene v. Clarke, is particularly important because it is the first published decision by the Supreme Court of Virginia analyzing the constitutional obligations owed by defense attorneys to their noncitizen clients. In 2010, the Supreme Court of the United States held in Padilla v. Kentucky that criminal defense attorneys are constitutionally obligated to advise their clients regarding the deportation consequences of a plea. In Zemene v. Clarke, the Supreme Court of Virginia dug into what Padilla requires, articulating a broad view of an attorney’s obligation to investigate a client’s immigration history, advise her client about immigration consequences, and attempt to negotiate a plea bargain that avoids negative immigration consequences. Similarly, the court took a broad view of the circumstances in which a noncitizen will be prejudiced as a result of negative immigration consequences for the purposes of an ineffective assistance of counsel claim. A finding of prejudice is necessary for an individual who has received ineffective assistance of counsel to obtain any actual remedy.

In Zemene, the Court identified four critical steps that Mr. Zemene’s attorney should have taken, but did not in order to ensure that the representation of his client was effective:

• Undertake to learn “the precise nature” of the client’s immigration status;
• Determine if there are “potential negative consequences” to the client’s immigration status arising from a contemplated plea;
• Broach the subject of any potential immigration consequences with the prosecutor during plea negotiations; and
• Discuss with the client the likelihood of the potential negative consequences that will flow from the plea.

CAIR Coalition has issued a practice advisory advising Virginia criminal defense attorneys to use these four steps as a guide for what constitutes constitutionally effective representation of noncitizen clients, noting that different approaches may be required depending on the circumstances of each case.

The Virginia Justice Program & Immigration Consequences of Crime

Pin-pointing the potential negative immigration consequences of a criminal conviction can be a complex and time-consuming task. The defense attorney must understand her client’s immigration history and status, any and all prior convictions, and the nuances of the immigration penalties he might subsequently face. In the state of Virginia, no state resources are devoted to providing the indigent criminal defense bar with the specialized training and individual consultations necessary to meet the constitutional obligations laid out in Padilla and Zemene. At CAIR Coalition we are proud to have launched the Virginia Justice Program this past fall, with the specific goal of addressing these needs for public defense attorneys throughout the Commonwealth.

CAIR Coalition congratulates Mr. Zemene and the tremendous legal team that secured this win: Jayesh Rathod, Associate Professor of Law at American University Washington College of Law; Jenny Roberts, Professor of Law at the American University Washington College of Law; Scott Seguin of the law firm of Calderon Seguin; and law students Joseph McGlew-Castaneda, Sofia Vivero, Alia Al-Khatib and Rachel Nadas.