Kim Hunter Law - Immigration and Nationality Attorneys

On March 31, 2010, the U.S. Supreme Court issued its ruling in Padilla v. Kentucky requiring criminal defense attorneys to inform their immigrant clients of the possibility of deportation that could result from pleading guilty to criminal charges (particularly when consequences are clear). Jose Padilla, a native of Honduras, had been a lawful permanent resident ("green card" holder) in the U.S. for more than 40 years. Mr. Padilla was facing deportation after pleading guilty to transportation of a large amount of marijuana in Kentucky. Mr. Padilla's criminal defense attorney did not advise him of the certainty of deportation if he plead guilty to the crime; in fact he told Mr. Padilla that he did not have to worry about his immigration status because he had been in the U.S. for so long. The Kentucky Supreme Court had ruled that Mr. Padilla had no constitutional right to be warned of the possible immigration consequences of his plea. The U.S. Supreme Court overturned that ruling in a 7-2 decision. Justice Steven, who wrote the majority opinion, held that "because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes" criminal defense attorneys "must inform a client whether his plea carries a risk of deportation."

The Supreme Court previously held in Strickland v. Washington that a defendant has a 6th Amendment right to effective assistance of counsel before deciding whether to enter a guilty plea. 466 U.S. 668 (1984). The Court expanded that ruling in Padilla by holding that a 6th Amendment right to effective assistance of counsel includes the right to be informed of possible negative immigration consequences from entering a guilty plea. The majority opinion developed a two part test to determine whether a criminal defense attorney was ineffective in his or her advice regarding immigration consequences of a guilty plea. The Court stated "[w]hen the law is not succinct and straightforward, 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 … the duty to give correct advice is equally clear." The majority's opinion is not limited to affirmative misadvice – such as when Mr. Padilla's criminal defense attorney incorrectly told him that he did not have to worry about negative immigration consequences of pleading guilty. The majority's holding would also apply to situations where the criminal defense attorney failed to inform their client at all that there may be immigration consequences of pleading guilty. Therefore, if it is obvious from immigration statutes within the Immigration and Nationality Act (INA) that the conviction would result in deportation, counsel must advise their client that a guilty plea will result in deportation. The majority test requires counsel to not only inform their client that there may be possible negative consequences to their immigration status – but also requires counsel to inform their clients of the specific consequences in certain situations.

This "clear / unclear" test is problematic in that the Court does not then go on to explain what "clear" and "unclear" mean, which is a point Justice Alito attacked in his concurrence. Justice Alito argues that immigration law is very complicated and it is often difficult to determine whether the conviction for a particular crime carries immigration consequences, and what immigration relief may – if any – be available for those convictions. There is no succinct definition of what particular crimes constitute an aggravated felony or crime of moral turpitude under immigration law – it often varies from state to state and circuit to circuit. Justice Alito stresses that criminal defense attorneys cannot be expected to also be experts in immigration law, and the majority's holding places too high of a burden on criminal defense attorneys. Justice Alito put forth his own test for determining a 6th Amendment violation by stating that a criminal defense attorney's 6th Amendment duties should be to 1) warn the client that there may be possible negative immigration consequences to pleading guilty and 2) if that attorney does not know what the consequences are, the attorney should inform the client that they are not an immigration expert and the client should seek advice from an immigration attorney to determine what those possible consequences are. Justice Alito would only find a 6th Amendment violation if there was affirmative misadvice by the criminal defense attorney – silence alone is not enough. Because there was affirmative misadvice in Mr. Padilla's case, Justice Alito concurred with the majority's holding that Mr. Padilla's 6th Amendment right to effective assistance of counsel was violated.

A further complication with the majority's opinion is Justice Steven's statement that guilty pleas that were entered into within the last 15 years are unlikely to be affected by the Padilla ruling. Justice Stevens states that because professional norms – mostly through rules imposed by state bars – oblige counsel to provide advice on deportation consequences of a client's plea, there is a presumption that there is no 6th Amendment violation in those cases. It is possible that courts will treat Justice Steven's statement as establishing a rebuttable presumption that a criminal plea entered by a defendant in a state with such professional norms cannot demonstrate a 6th Amendment violation.

We encourage you to read the Padilla practice advisory written by the Immigrant Defense Project. It contains an excellent overview of what criminal defense attorneys are now required to say to immigrant defendants.

So what can criminal defense attorneys do to ensure they comply with the requirements of Padilla? At a minimum, a criminal defense attorney should advise their immigrant clients that by pleading guilty to criminal charges, they could face negative immigration consequences, including possible deportation from the U.S. They should then contact a reputable immigration attorney with experience in removal defense to inquire about the possible immigration consequences of pleading guilty to a particular criminal charge.

There are immigration consequences to other criminal actions. For example, if a noncitizen accepts diversion before a plea is taken, that result will not be considered a conviction for immigration purposes. Pre-plea diversion can be a very valuable tool, particularly for theft-related offenses that could otherwise result in deportation. However, if a noncitizen defendant stipulates to the accuracy of facts in a police report or probation report admitted at the pre-plea diversion stage, that may be enough to sustain a conviction finding in immigration court. This serves to emphasize the importance of limiting the state court record in these cases.

Further, expungements or dismissals following completion of a sentence also stand as convictions for immigration purposes.

Immigration can be a very complicated area of law – especially when it comes to deportation defense. Here at Kim Hunter & Associates, we have significant experience with deportation defense, and have worked with many criminal defense attorneys (both court appointed and private counsel) in helping criminal defendants avoid harsh immigration consequences of guilty pleas. If you have a noncitizen client with criminal charges pending, or are yourself a noncitizen with criminal charges pending against you, please contact our office for assistance at (651) 641-0440.

Kim Hunter & Associates • 821 Raymond Avenue • Suite 305 • St. Paul, Minnesota 55114 • United States
Phone Number: 651-641-0440 • Fax Number: 651-641-8689 • kim@kimhunterlaw.com • www.KimHunterLaw.com