Immigration Law Update – Padilla v. Kentucky
On March 31, 2010, the United States Supreme Court issued an opinion in Padilla v. Kentucky (2010) 129 S.Ct. 1317. The issue presented to the Court was whether a criminal defense attorney rendered ineffective assistance of counsel to a client when she failed to advise the client of and affirmatively gave wrong advice regarding the potential immigration consequences of his guilty plea.
Petitioner Padilla was a lawful permanent resident of the United States for over 40 years and honorably served in the U.S. Armed Forces in Vietnam. Padilla pled guilty to a felony charge of transporting a large amount of marijuana in Kentucky. His immigration attorney told him that he would not be deported because he had been in the country for so long. However, the non-citizen removal statutes clearly state that any conviction for a drug trafficking offense will (not may, WILL) result in deportation. Padilla claimed that he would have proceeded to trial had his immigration lawyer properly advised him that he would face deportation if convicted.
The lower courts, including the Kentucky State Supreme Court, held that a failure to advise on immigration issues and even wrong advice on immigration issues were merely a “collateral consequence” to his conviction thus his attorney’s erroneous advice was not a violation of his Sixth Amendment right to effective assistance of counsel. Generally the court was saying that since the immigration issues were not a result of punishment by the criminal courts in direct response to his guilty plea, the Sixth Amendment did not apply. An example of a collateral consequence would be a person losing their job because they pled guilty to a felony. Although that is foreseeable and unfortunate, it is not a punishment doled out by the court and thus is a “collateral consequence”.
The United States Supreme Court disagreed with the Kentucky State Supreme Court. Instead, the U.S. Supreme Court decided that immigration consequences are an integral part of the penalties associated with criminal proceedings for non-citizens because those consequences are often as severe, if not more so, than the actual criminal punishment.
The Court recognized that immigration law is a complex area of practice, but due to the severity of the consequence of a criminal conviction, criminal defense attorneys still have some duties to the clients with regard to immigration.
The Court held that if the immigration consequences were clear, as they were with Padilla, then an attorney has a duty to advise the client of those consequences prior to letting them enter a guilty plea. In Padilla’s case, if the attorney had read merely the removal statute, she would have seen that his plea would automatically result in deportation because all drug trafficking offenses result in deportation. If the consequences are not clear, the attorney then has a duty to advise the client that there will be immigration consequences including potential deportation but the attorney does not have to be more specific.
