Second Circuit Remands Ineffective Assistance Claim for Lawyer’s Failure to Apprise Naturalized U.S. Citizen of Denaturalization Risk Before Guilty Plea
In Rodriguez v. United States, the Second Circuit remanded the case to the district court to hear evidence on a defendant’s application to vacate her guilty plea, on the grounds that she would not have entered into the plea if her counsel had properly advised her as to its immigration consequences. The Circuit, in a summary order written by Judges Walker, Lynch, and Chin, concluded that there was a reasonable probability that, had she been properly advised, she may have chosen not to plead guilty and thus may have avoided the immigration consequences that later ensued. Accordingly, it remanded the case to the district court to develop an evidentiary record and make a finding on those issues. The order requiring a hearing on a defendant’s right to extraordinary relief represents a reminder to judges and prosecutors that the immigration consequences of a guilty plea are no less central to the plea allocution than the contemplated term of imprisonment. The decision follows the Supreme Court’s decision last term in Lee v. United States, 137 S. Ct. 1958, 1967 (2017). In Lee, the Court held that a defendant who would not have pleaded guilty but for counsel’s errors concerning the deportation consequences of his or her plea has demonstrated ineffective assistance.
This is an atypical “crimmigration” case in that the defendant, Cleopatra Rodriguez, is actually a U.S. citizen, having applied for and obtained citizenship in 2007. As part of her citizenship application, Rodriguez declared under oath that she had not committed any crime for which she had not been arrested. In 2009, however, she was indicted for participation in a low-level tax scheme. She pleaded guilty to that crime in 2010, stating in her allocution that she had been involved in the tax scheme “between 2006 and 2008”—i.e., both before and after she applied for U.S. citizenship. At her sentencing, her counsel requested a below-guidelines sentence, citing the fact that she was the sole source of income for her minor children and elderly parents, and that her “family would suffer severe collateral consequences” in the event of a lengthy imprisonment.
Although the district court sentenced her to only 90 days in prison, after she served that term the Government filed denaturalization proceedings against her. The basis for the denaturalization complaint was that Rodriguez’s representation in her citizenship application that she had never committed a crime was false, as demonstrated by her 2010 plea allocution. Rodriguez, who had not understood that denaturalization was a possible consequence of her guilty plea, then filed a petition for writ of coram nobis seeking vacatur of the plea on the basis of ineffective assistance of counsel. She represented in her petition that her counsel had not explained to her that denaturalization proceedings were a possibility, and had even told her that she “did not have to worry” about immigration consequences because she was a U.S. citizen.
The district court denied the petition, concluding that (1) Rodriguez had not established that she could have secured a more favorable plea agreement if she had understood the immigration consequences; and (2) an order vacating her conviction would not vitiate the basis for the denaturalization proceedings in any event, because Rodriguez did not dispute that she had in fact engaged in criminal conduct prior to her 2007 citizenship application.
But in this (rather lengthy) summary order, the Circuit disagreed on both points. It noted that there was no way to know whether the Government would have countenanced a plea agreement that did not involve an admission of pre-2007 criminal conduct, because—thanks to her counsel’s ineffective assistance—Rodriguez had never sought any such agreement. It also emphasized that defense counsel’s representations at sentencing made clear that Rodriguez’s continued ability to work and support her family in the United States was of paramount importance to her, suggesting that she may have chosen to take her chances at trial had she known that that was in jeopardy. And as to the question whether withdrawing her plea agreement would affect the basis for the pending denaturalization proceedings, the Circuit reasoned that of course it would: if she had not pleaded guilty to engaging in criminal conduct starting in 2006, the Government would have no basis for claiming that she had lied in her 2007 citizenship application. The Circuit therefore remanded to the district court to hold a hearing and make a factual finding as to whether Rodriguez was prejudiced in her criminal case by her counsel’s ineffective assistance.
Not only is this order the latest data point in the increasing trend of the Second Circuit making substantive decisions by summary order, but it is also a cautionary tale to the criminal bar on the importance of ensuring that criminal defendants are made aware of the immigration consequences of their plea agreements. Failure to do so can amount to ineffective assistance and also can leave a defendant vulnerable to deportation, or even stripped of their citizenship. It is no victory to help a client receive a shorter sentence if the client is promptly deported afterwards.