Unusual NC Supreme Court action has significant impact on immigrants in legal system

Unusual NC Supreme Court action has significant impact on immigrants in legal system

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Archie Nkiam (Illustration by Nelle Dunlap)

Archie Nkiam was 22, going to school full-time for electrical engineering and working two jobs when he got caught up in the Wake County criminal justice system.

To his public defender, he was just an average kid who got carried away with the wrong crowd; book smart but not very street savvy.

Deonte Thomas worked hard for Nkiam, just like he would for any of his defendants, to get the best deal he could under the circumstances, and it seemed like he did: probation without jail time for charges of aiding and abetting common law robbery and conspiracy to commit common law robbery.

What Thomas didn’t know until the 11th hour was that Nkiam was not a U.S. Citizen, and his family had narrowly escaped political persecution in the Democratic Republic of the Congo.

He didn’t know that when Nkiam was 9-years-old, a Congalese soldier put a gun to his head and threatened to kill him if his Tutsi mother didn’t tell the government where his father was.

He didn’t know that Nkiam, his mother and siblings fled to Cameroon before joining his father in America.

He didn’t know that while in Cameroon, Nkiam’s uncle was killed by the same dictatorship looking for his father.

He didn’t know that the plea deal he worked out for Nkiam would result in mandatory deportation, a fate worse than any sentence the court could impose on his client.

When he found out, Thomas warned Nkiam that he could face immigration consequences but that he hoped because of his circumstances it wouldn’t come to that. He acknowledged in court that he never read the federal removal statute that makes clear Nkiam’s charges would result in mandatory deportation.

That’s where this story really begins.

The 2010 U.S. Supreme Court ruling in Padilla v. Kentucky establishes that criminal defense attorneys need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences.

“But when the deportation consequence is truly clear … the duty to give correct advice is equally clear,” the ruling states.

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A long court battle has ensued in Nkiam’s case, and while his fate still hangs in the balance, it’s at the very least begun to establish the parameters of Padilla for criminal defense attorneys practicing in North Carolina.

Did Thomas meet his constitutional requirement in Padilla by telling Nkiam he could face immigration consequences? Or, does Padilla require that he should have told Nkiam he would face immigration consequences?

In a rare move, the state Supreme Court at the end of September declined to move on the case after already agreeing to take it and hearing oral arguments. As a result, the Nov. 2015 Court of Appeals opinion stands, which rules that Thomas did not meet his constitutional requirement in Nkiam’s case.

“In this case … there was no need for counsel to do anything but read the statute,” the document states in State of North Carolina v. Archimede N. Nkiam. “Consequently, we hold that the deportation consequences of defendant’s guilty plea were truly clear in this case. Trial counsel was required, therefore, under Padilla, ‘to give correct advice,’ and not just advise the defendant that his ‘pending criminal charges may carry a risk of adverse immigration consequences.’”

For Nkiam, this ruling proved his claim of ineffective assistance of counsel, a prong he needed to meet to be granted a motion for appropriate relief (MAR).

There are two things that could happen now in his case: it will either go back to Wake County Superior Court for a hearing on the second MAR prong: prejudice. If that prong is proven, his conviction will be vacated. The other possibility is that the Attorney General’s Office, which did not return a call for comment, could try to get the U.S. Supreme Court to take the case and overturn the Court of Appeals opinion.

In the meantime, Nkiam is still subject to deportation. His attorney, Daniel Blau declined to be interviewed, citing the ongoing nature of litigation.

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For criminal defense attorneys in North Carolina, the Court of Appeals opinion establishes the principles of Padilla. It puts their theoretical duty into state law, according to Hans Christian Linnartz, an immigration attorney and professor of immigration law at Duke Law School.

“It affirms what the Supreme Court said in Padilla will be applied, that criminal defense attorneys will be held to the responsibility of investigating immigration consequences for anyone,” said Linnartz, who also testified in Nkiam’s case.

Before Padilla, criminal defense attorneys viewed immigration consequences the same way they viewed post-sentence consequences, like a convicted felons right to own a gun or their right to vote, Linnartz said. It just wasn’t their responsibility.

But deportation is such a serious consequence for defendants that “it’s simply unreasonable to ignore it altogether,” Linnartz said.

The burden, though, that Padilla and Nkiam puts on criminal defense attorneys does not have to be great. There are a number of options, but all should start with attorneys communicating with their clients about their citizen status in the U.S.

“Do it early,” said Helen Parsonage, a criminal defense attorney who also specializes in immigration law. “All you have to do is ask date of birth, place of birth.”

At the point that immigration could be an issue, Parsonage and Linnartz recommend criminal defense attorneys consult with immigration attorneys. Often, if a simple answer about immigration consequences is involved, it’s a quick, free telephone conversation.

Other times, there may be a consultation fee involved that can be built into the defendant’s fee structure with their attorney, Parsonage said.

“I think the question (with Padilla) is always going to be, at what point are consequences truly clear?’ she said. “I hear from criminal defense attorneys all the time that the problem for them is they don’t know that it’s truly clear.”

The takeaway from the Court of Appeals opinion, according to Parsonage, should be that it’s best for criminal defense attorneys to be cautious and prudent with clients from the beginning and have an immigration attorney on speed dial.

Thomas could not be reached for comment, and no one interviewed for this story blamed him or criticized his interpretation of his duty to Nkiam. Linnartz complimented his work and said public defenders are inherently heavily overloaded.

Thomas Maher, executive director of North Carolina’s Indigent Defense Services, said in the wake of Padilla, public defenders started networking with others who know immigration law and have a designated resource in the office to go to when needed.

“If you don’t know immigration law, you don’t really know what’s clear and what isn’t clear,” he said. “(Public defenders) have a very limited case load that really prohibits them from digging in.”

The University of North Carolina School of Government also created an Immigration Consequences manual in 2008 to help criminal defense attorneys advise clients. It’s not completely up-to-date, but can be a good starting point for attorneys.

“There’s no doubt that Padilla and Nkiam asks more of criminal defense attorneys, but given the significance of the consequences for some criminal defendants, it’s just something that has to be done,” said John Rubin, an Albert Coates professor of public law and government at the UNC School of Government. “It’s an important aspect of criminal representation for non-citizen clients.”