By Catherine Park, Esq.
In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court made clear that defense counsel must warn a non-citizen client about possible deportation risks. Padilla involved a non-citizen, Jose Padilla, a legal permanent resident of the U.S. for 40 years, who served with honor in the U.S. Armed Forces during Vietnam. When charged with transporting a large amount of marijuana in his tractor-trailer in Kentucky, he pleaded guilty upon receiving erroneous advice from his defense counsel, who told him that he “did not have to worry about immigration status since he had been in the country so long.” Defense counsel was unaware of sweeping changes in immigration law that made virtually every drug offense a deportable offense.
A non-citizen convicted of a crime now faces almost certain deportation or inadmissibility. Padilla stated that, if his counsel had warned him of the deportation consequences, he would have proceeded to trial rather than plead guilty.
The U.S. Supreme Court reversed and remanded the decision of the Kentucky Supreme Court, which had held that defense counsel need not warn a client of deportation risks, because immigration consequences were “collateral” rather than direct consequences of the guilty plea. The U.S. Supreme Court stated that it has never applied a distinction between direct and collateral consequences to define the scope of constitutionally required effective assistance of counsel in criminal cases.
The U.S. Supreme Court also recognized that immigration law is a specialty in and of itself, and many defense attorneys may not be familiar with recent changes. Therefore, where the deportation risks are not clear, defense counsel need only advise non-citizen clients that pending criminal charges may give rise to adverse immigration consequences. However, in cases such as Padilla’s, where a guilty plea makes deportation a certainty, and where there is no gray area in the immigration statute, defense counsel’s duty to warn the client of the deportation risk of pleading guilty is clear, and failure to do so makes counsel’s performance constitutionally deficient.
Defense attorneys who represent non-citizen clients might consider teaming with immigration attorneys, to guard against rendering erroneous advice that places their clients at risk of deportation/removal, inadmissibility, bar to reentry, and/or ineligibility for citizenship.
DISCLAIMER: The opinions expressed herein are general and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney in your jurisdiction.