Padilla v. Kentucky


Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.  There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.  The duty of the private practitioner in such cases is more limited.  When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

That’s the meat of the holding from Padilla v. Kentucky, decided today.

Texas courts advise defendants pleading guilty that their plea may result in adverse immigration consequences. Until today, that’s all that has been required by the law. Thorough and competent criminal-defense lawyers would determine the immigration consequences and advised their clients of them, but not all criminal-defense lawyers are thorough and competent, and it’s much easier to get the Padillas of the world to plead guilty if you gloss over those nasty consequences.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client. It’s about damn time.

(Justice Alito and Chief Justice Roberts, concurring, would hold that a lawyer is ineffective when he misleads a defendant regarding the removal consequences of a conviction, but not that the criminal lawyer has a duty to give immigration advice beyond, “this could have immigration consequences; talk to an immigration lawyer”; Justice Scalia and Justice Thomas, dissenting, would hold, “even assuming the validity of” Gideon and Strickland, that immigration consequences are collateral, so that even affirmative misadvice about immigration consequences does not render assistance ineffective.)


8 responses to “Padilla v. Kentucky”

  1. *sigh* This is probably one of the better recent court decisions and one of the most troubling for the practicioner.

    In many cases, I agree, the advice is rather straight-forward. But there have been times when even my immigration law collegues could not answer the question for me. When the issue is completely unclear – even for those who practice in the field (as some of the issues appear somewhat … arbitrary in their application, etc.) How can we give sage advice? And, should we be unable to render advice concerning whether a matter will truly result in a chance for deportation, when our client refuses the plea offer, are we subject to malpractice when the issue later becomes a clear non-issue?

    Immigration law is a field unto itself because of the vaguaries of that area of law and requires a special understanding beyond what I am able to provide as a criminal defense lawyer. Somehow, this ruling strikes me as similar to the law requiring bankruptcy counsel to certify that the client’s representations are true and accurate…

    I probably have missed something though. Maybe I just haven’t thought the realities through well enough. Still, Padilla bothers me from a professional standpoint.

  2. I agree that a defendant should be warned of all of the collateral consequences of a conviction, including immigration consequences. But why does this fall back on us? Shouldn’t the State take some responsibility for educating the people it’s trying to run over (see, e.g., Miranda)?

    • I think that, at least in reality, lacing the burden upon the state would just about guarantee that every plea would be subject to appeal (i.e. the State would be no more sucessful at determining possible outcomes than we lowly lawyers).

      Better to place the burden on the non-state actor.

      By the way, does anyone have any idea what to make of the concurring opinions? What does that spell for possible expansion of the Padilla decision (if any expansion)?

      • Mickey, I think that your response highlights the exact problem I have with this decision. And, as a practical matter, if it were the State’s burden, I’m fairly certain any ambiguities in the law in this area would cleared up REAL quick.

        • I think this issue is best evidenced by the comcurrence opinion. Hopefully, folks will view the concurrences as evidence that the court will try to limit the reach of this case (if only for practical reasons).

          On the other hand, I applaud the decision as I firmly believe it will light a fire under those who decipher our immigration regulations to create unified, articulated and clear interpretations that the “rest of us” can follow.

  3. I haven’t had time to read the case yet–I’ve been too busy preparing for an illegal voting trial (client accused of voting after becoming a convicted felon–was never told she couldn’t vote) and a felon in possession of a weapon trial (client never told he couldn’t have a shotgun or hunt birds) to invest the time to find out what I should or must inform my clients about the collateral consequences of their convictions.

  4. I love Padilla and I hate Pailla. I am both a criminal and an immigration attorney. I like to think I have a pretty firm grasp on both. So, for me, its ok. I would inform my non Citizen clients anyway and its the first thing I think of with any foreign born client. But, that’s me. I think it is an incredibly murky area and it will create a great hardship for those who don’t practice both. It’s not simple. And, while the decision acknowledges that its not simple, it does nothing to lessen the burden on criminal defense attorneys. I know some PD’s offices have immigration attorneys they work with which puts them one step ahead, but otherwise its going to be a bit more work. It’s not as simple as advising a client that they may not be able to vote or own a firearm.

    So, I love it because the immigration consequenes can be absolutely devastating and its important for the powers that be to finally acknowledge that, and I hate it because I don’t know that it can actually be implemented all that well.

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