New Rules for Attorneys Representing Non-citizen Criminal Defendants

The Supreme Court of the United States in Padilla v. Kentucky ruled that attorneys representing a non-citizen defendant must advise that a guilty plea may result in adverse immigration consequences.

Specifically, the Supreme Court held that where deportation consequences for the defendant are clear, counsel has a duty to warn of the consequences. However, where the deportation consequences are not clear, counsel need do no more than advise the defendant that a conviction may carry a risk of adverse immigration consequences.

Padilla was a lawful permanent resident of the United States for over 40 years who plead guilty to drug-distribution charges. On appeal from the conviction, Padilla argued that his attorney did not advise him of the consequence of deportation that could result from a conviction, and that his attorney told him that deportation would not occur because he had resided in the country for so long. Padilla claimed that he would not have plead guilty to the charge had he known the potential consequences.

The Kentucky Supreme Court rejected Padilla’s claim, holding that the Sixth Amendment’s guarantee of effective assistance of counsel does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of conviction.

When a non-citizen is charged with a crime in American courts he or she faces the risk of deportation from the country in addition to the criminal penalties. Convictions of certain crimes, such as those involving moral turpitude or those labeled aggravated felonies, will lead to automatic deportation for non-citizens. Convictions of lesser offenses may land in a legal gray area, where deportation is not necessarily automatic or is at least not mandatory. A drug-distribution charge will lead to deportation. A non-citizen defendant who is sentenced to jail or prison time will first serve that time before being deported.

Criminal defendants are entitled to the assistance of counsel in the criminal process by the Sixth Amendment of the Constitution. Supreme Court decisions have elaborated that this right applies to the plea-bargaining process and that counsel is required to inform a defendant of the direct consequences of a conviction.

Although deportation is technically a collateral civil consequence, the Supreme Court held that the consequence is of sufficient importance to require that non-citizen defendants be informed of its possibility. The deportation process is so intimately intertwined with the criminal process that the Supreme Court did not need to address the distinction between collateral and direct consequences of a conviction.

The expansion of deportable offenses in recent years means that non-citizen defendants are much more likely now to face the possibility of deportation upon a conviction. In reality, deportation for a non-citizen is sometimes much worse than dealing with the criminal penalties.

A court reviewing an ineffective assistance of counsel claim looks to see whether the counsel’s representation fell below an objective standard of reasonableness, and then whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

The objective standard of reasonableness is based on the prevailing professional norms in the legal community, and the Court stated that the weight of prevailing professional norms supports the view that counsel must advise clients regarding the risk of deportation.

Ultimately, the Court found that Padilla had sufficiently alleged that his counsel was constitutionally deficient, but whether he was entitled to relief depends on whether he had been prejudiced by the representation, a matter the Court did not address in its decision.

Padilla establishes the minimum requirements placed on defense attorneys by the Constitution. It is this author’s practice, however, to make the sure the non-citizen client is given precise information relating to the immigration consequences of the proceeding, and then work to fashion a result wherever possible that is consistent with the client’s immigration goals. A non-citizen facing criminal charges will often worry more about the impact to his or her immigration status than the criminal penalties. Effective representation takes this into account.

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