Immigration Consequences in Criminal Cases
The United States Supreme Court, in Padilla v Kentucky 559 US ___ (2010), recently decided a case that changed the landscape of criminal defense of non-citizen clients. The Supreme Court held that the Sixth Amendment now requires defense counsel to provide affirmative, competent advice to a non-citizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a non-citizen may raise a claim of ineffective assistance of counsel. Previously, a criminal defense attorney was not legally required to inform his or her client of any immigration consequences that may occur because of the client's guilty plea. This is because it was considered a "collateral" consequence of a conviction (i.e., a matter not within the sentencing authority of the state trial court).
This case arose when Jose Padilla, a lawful permanent resident of the United States for 40 years, and a veteran of the Vietnam War, alleged ineffective assistance of counsel, because he was not informed of the potential deportation consequences of his criminal conviction. Padilla pled guilty to transportation of a large amount of marijuana in Kentucky. The United States Supreme Court stated that Padilla's counsel could have easily seen that under 8 USC 1227(a)(2)(B)(i), his client would be eligible for deportation. The statute stated in part, "Any alien who at any time after admission has been convicted of a violation … relating to a controlled substance … is deportable." Padilla had been erroneously informed that he didn't have to worry about immigration status because he had been in the country for so long.
The Supreme Court found that deportation is a severe penalty and not just a "collateral" matter. The Supreme Court also found that an attorney's silence regarding immigration consequences is insufficient advice to a client. The client should be informed of, and be able to consider, the outcome regarding a plea bargain and its immigration consequences. Part of this rationale is that there are plea negotiations that can be sought to negate deportation or diminish its probability.
The Supreme Court developed new guidelines for criminal defense attorneys and non-citizen clients:
If deportation consequences are unclear, the attorney must inform the client that there is a risk of deportation.
If deportation consequences are clear, as they were in Padilla, the attorney must give correct advice.
Best Practices:
Inquire about the client's immigration status at the first meeting.
Create an initial questionnaire to include things like place of birth and immigration or citizen status.
Compile a checklist for immigration clients.
Investigate immigration consequences and advise your client accordingly.
Refer clients to immigration attorneys or other experts for additional guidance.
Keep up to date on immigration law.
Keep a folder on immigration law, i.e., articles, statutes, and case opinions.