Padilla v. Kentucky Requires Criminal Lawyers to Give Immigration Advice

The recent Supreme Court decision in Padilla v. Kentucky greatly increases the criminal defense attorney’s responsibility to provide effective assistance of counsel. It’s a sea change from defense counsel’s previous minimal obligation under Tex. Code Crim. Proc. Article 26.13(a)(4) to merely advise a defendant that a guilty plea might result in adverse immigration consequences. The Court explicitly rejected the view that only defense counsel’s misadvice concerning the immigration consequences of a conviction will rise to the level of  an ineffective assistance of counsel claim.  The Department of Justice's Immigration Law Advisor asserted that:

The Padilla ruling immediately affects criminal defense attorneys and their alien clients. All criminal defense attorneys now have the affirmative duty to research and advise on the consequences of a given plea, or they will risk an ineffective assistance of counsel claim.
In my opinion, Justices Alito and Chief Justice Roberts were more realistic about the slim prospect of  criminal defense lawyers providing “expert” advice about an area of law outside their expertise and an area of law which some have termed only second to tax law in complexity. Nevertheless, when the consequences are “succinct and explicit” the criminal defense lawyer now must render correct legal advice concerning the immigration consequences of a particular plea. In Austin, Texas and elsewhere in the Southwest the demographics insure that the criminal defense lawyer will increasingly face the prospect of  advising clients what effect a guilty plea will have upon their immigration status

The Padilla ruling immediately affects criminal defense attorneys and their alien clients. All criminal defense attorneys now have the affirmative duty to research and advise on the consequences of a given plea, or they will risk an ineffective assistance of counsel claim.

In my opinion, Justices Alito and Chief Justice Roberts were more realistic about the slim prospect of  criminal defense lawyers providing “expert” advice about an area of law outside their expertise and an area of law which some have termed only second to tax law in complexity. Nevertheless, when the consequences are “succinct and explicit” the criminal defense lawyer now must render correct legal advice concerning the immigration consequences of a particular plea. In Austin, Texas and elsewhere in the Southwest the demographics insure that the criminal defense lawyer will increasingly face the prospect of  advising clients what effect a guilty plea will have upon their immigration status.

A criminal conviction can entail a number of adverse immigration consequences aside from removal-namely the effect upon naturalization, ability to obtain a visa, etc.Padilla however dealt with the consequences of a criminal conviction upon the “removal” provisions of the Immigration and Nationality Act. As Padilla pointed out, the removal provisions in many cases have a greater impact upon a criminal defendant than the actual punishment for the commission of the criminal offense.

Removal Based Upon Criminal Conviction:

The Department of Justice’s excellent reference guide “Immigration Consequences of Criminal Convictions: Padilla v. Kentucky” points out that the:

The INA separates removal grounds into two categories: inadmissibility grounds codified at 8 U.S.C. § 1182(a) and deportability grounds codified at 8 U.S.C. § 1227(a). Both inadmissible and deportable aliens are referred to as “removable” aliens. The question of which category applies turns on whether the alien has been admitted to the United States, i.e., whether the alien has made a lawful entry after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). An alien who has not been admitted to the United States is subject to removal based on one or more grounds of inadmissibility.” Therefore, the person’s status in this country determines whether he/she will be “deportable” or “inadmissible.

Generally speaking, Lawful Permanent Resident’s are subject to deportability. (although a Lawful Permanent Resident can also be subject to grounds of inadmissibility). All others are subject to removal on grounds of inadmissibility. 
Different criminal conviction grounds exist for inadmissibility and deportability. A good quick guide along with other information pertaining to the immigration consequences of criminal convictions is available through The Immigrant Defense Project.

Comments (2)

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Criminal Defense Attorney - February 7, 2011 2:53 AM

Hi,

This is really interesting take on the concept. I never thought of it that way. I came across this site recently which I think it will be a great use of new ideas and informations. Thanks a lot.

Erik Goodman - February 7, 2011 8:43 AM

Thank you for your comment. I appreciate the support.