In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that the Sixth Amendment requires defense lawyers to advise a noncitizen client of the risk of deportation arising from a guilty plea. A defense lawyer's failure to so advise, or a defense lawyer's misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The Court held specifically that when the risk of removal resulting from a guilty plea is "clear," the defense lawyer must advise his or her client that "deportation [is] presumptively mandatory"; on the other hand, when that risk is less clear, the defense laweyer need only advise the defendant "that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 130 S. Ct. 1483. The Court acknowledged that a "[l]ack of clarity in the law...will affect the scope and nature of counsel's advice." Id. at 1483 n.10.
Applying these rules to Padilla's claim, the Court concluded that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." Padilla, 130 S. Ct. 1478. It observed that Padilla's "is not a hard case in which to find deficiency," because the consequences of the plea "could easily be determined from reading the removal statute," which is "succinct, clear, and explicit in defining the removal consequence for Padilla's conviction," and counsel's advice was incorrect. Id. at 483.
In light of Padilla, it is even more important than ever for prosecutors, defense lawyers, judges, and other interested parties at the federal and local levels to have a basic understanding of the immigration consequences that flow from a foreign national's guilty plea. This is true for at least three reasons. First, going forward, knowledge of immigration consequences will ensure that defendants enter knowing and intelligent pleas that will not be subject to challenge under Padilla. Second, a basic understanding of immigration law will assist those litigating and evaluating challenges to already-entered plea agreements based on the alleged failure to advise of the immigration consequences. Third, as the Supreme Court noted in Padilla, "informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process." 130 S. Ct. 1486. "By bringing deportation consequences into this process," the parties may not only preserve finality of pleas, but may also negotiate better agreements on behalf of the State and the noncitizen defendant.
Accordingly, the Office of Immigration Litigation ("OIL") has prepared a guide to provide a basic overview of the immigration consequences of a guilty plea. OIL emphasizes that this guide does not attempt to provide an interpretation of the scope and applicability of Padilla. Nor does it provide in-depth analyses of issues that arise under the Immigration and Nationality Act ("INA") and its implementing regulations, or a summary of immigration case law. Indeed, administrative and judicial precedents on immigration matters are far from uniform, and determining what precedent to apply might be difficult because the removal proceeding may not be completed in the same jurisdiction as the criminal proceeding. For these reasons, and because the Supreme Court's decision requires defense lawyers to advise clients of the potential risks of immigration consequences from the "terms of the relevant immigration statute," Padilla, 130 S. Ct. 1483, OIL has focused its efforts on presenting a brief, cogent, and clear introduction that summarizes and cites the relevant statutory provisions bearing on those consequences.
Click this link to download a copy of OIL's "Immigration Consequences of Criminal Convictions: Padilla v. Kentucky."