Thoughts on Padilla

Wow. It has taken me all day to really digest this case.

As mentioned in an earlier post the U.S. Supreme Court issued a ground-breaking decision today. In Padilla vs. Kentucky, the Supremes held that constitutionally effective counsel must provide their non-citizen clients immigration advice. How accurate and thorough the advice must be depends upon the particular facts of the case. Further, only defendants who can show prejudice caused by the lack of correct advice will state a claim for ineffective assistance of counsel. The case involved a long-term Lawful Permanent Resident (LPR or Permanent Resident Alien) who plead guilty to a drug offense that is an “aggravated felony” under the Immigration and Nationality Act. Any aggravated felony makes nearly every LPR deportable and statutorily ineligible for relief from deportation. In Padilla, the defendant specifically asked his lawyer if the conviction would affect his immigration status. The defense attorney told the defendant that deportation was unlikely due to the defendant’s long residence in the United States.

Many attorneys following case law discussing the intersection of effective assistance of counsel, the collateral consequences doctrine and immigration law thought the Supremes would hold that only where a defense attorney provides affirmative misadvice, such as the case in Padilla, is ineffective. Oh no; the Court went further: “We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment Right to Counsel.” Strickland applies. The Court explains that there is a continuum of the accuracy and amount of immigration advice to be provided by effective counsel. Where the law is clear that the conviction will result in deportation, the advice must be clear. Where the law is unclear that a conviction will result in deportation, the Court suggests that advising the defendant that the criminal charge “may” present a risk to their immigration status would be sufficient. This is one of those situations where remaining silent is not the most prudent course of action--at least not for defense counsel.

While I applaud the decision, I do not underestimate the difficulty that a lawyer unfamiliar with immigration law will have determining if a particular client’s conviction will definitely cause deportation or just make deportation possible. Nevertheless, there are untold numbers of people who plead guilty to offenses that guaranteed their deportation on the advice of counsel. Having had to explain the difference between criminal and immigration law to numerous parents, wives and children of people who unknowingly agreed to their own permanent banishment from the U.S., I look forward to fewer of these conversations.