Category Archives: Criminal violations and immigration consequences

Criminal defense attorney has a duty to advise immigrant non-citizens of immigration consequences of a guilty plea

On March 31, 2010, the United States Supreme Court in Padilla v. Kentucky, 2010 U.S. Lexis 2928 (March 31, 2010) held that immigrants and non-citizens with criminal convictions which subject them to deportation have a right to competent and affirmative advice regarding the immigration consequences of a guilty plea.  The Supreme Court held that absent such advice an immigrant defendant may raise a claim of ineffective assistance of counsel under the Sixth Amendment. 

Padilla holding requires criminal defense attorneys working with immigrant and non-citizen clients facing criminal convictions to advise them of immigration consequences of a guilty plea.  If you are a foreign national who pleaded guilty to a crime that might subject you to deportation and you were not advised of the immigration consequences of your guilty plea under Padilla holding your guilty plea may be vacated based on ineffective assistance of counsel and your deportation may be terminated.  Contact our experienced immigration attorney today for assessment of your criminal case and potential immigration consequences. 

Under Padilla criminal defense attorneys owe the following duties of care to their immigrant non-citizen clients:

  1. Duty to inquire about criminal client’s immigration or citizenship status at the inception of the attorney-client relationship;
  2. Duty to investigate client’s criminal history and advise immigrant non-citizen client about immigration consequences of a guilty plea;
  3. Duty to advise of different plea alternatives to avoid harsh immigration consequences; and
  4. Duty to investigate and advise about immigration consequences of sentencing alternatives. 

Under current law deportation is considered to be penal in nature because it is closely intertwined with criminal proceedings.  The Supreme Court in Padilla explained that professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel.  The court explained that the Sixth Amendment requires affirmative and competent advice regarding immigration consequences.  The Supreme Court made it clear that defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes ineffective assistance of counsel.  Where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise an immigrant or non-citizen client regarding the possibility of adverse immigration consequences.

The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining.  The Court specifically focused on benefits and appropriateness of the defense and the prosecution factoring immigration consequences into plea negotiations in order to craft a conviction and sentence that reduce the likelihood of deportation while promoting the interests of justice.

If you require any assistance to assess immigration consequences of your criminal conviction, please contact our office through contact page or by phone at 314-872-3988.