Padilla v. Kentucky: Defense Counsel Has a Duty to Advise a Client About Immigration Consequences
In an important case issued on March 31, 2010, the United States Supreme Court held that defense counsel has a duty to advise a noncitizen client of the immigration consequences of a plea . Padilla v. Kentucky, No. 08-651.
In 2002, Jose Padilla, not the terrorism detainee, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claimed he pled guilty in reliance on his defense counsel’s advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas.
The questions presented in this case were: (1) Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an “aggravated felony” under the Immigration and Nationality Act (INA), is a “collateral consequence” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and (2) Assuming immigration consequences are “collateral,” whether counsel’s gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
In a decision which expands defense counsel’s duties, the court held that because counsel must inform a client whether his plea carries a risk of deportation, Padilla had sufficiently alleged that his counsel was constitutionally deficient.
The rationale for the decision was that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
The Supreme Court pointed out that before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” Strickland v. Washington, 466 U. S. 668 (1984). The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about deportation concerned only collateral matters. However, the Supreme Court pointed out that it has never distinguished between direct and collateral consequences in defining the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. The question whether that distinction is appropriate need not be considered in this case because of the unique nature of deportation. Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.
Editor’s Note: 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. However, it is my practice to always consult with an immigration attorney whenever there is any doubt about immigration consequences.