Truth and Consequences: Defense Counsel’s Duty to Advise Clients of the Consequences of Conviction

Criminal law and immigration law intersect in many ways, perhaps most critically in that criminal charges can have dire immigration consequences for noncitizens. When this is an issue, certain duties arise for defense counsel, the breach of which amounts to “constitutionally deficient” representation.

The U.S. Supreme Court held that defense counsel’s duty to advise a defendant of the adverse immigration consequences of a plea fall within the ambit of the Sixth Amendment right to counsel. Padilla v Kentucky (2010) 559 US ___, 176 L Ed 2d 284, 130 Sp Ct 1473 (.pdf). When the law is unclear, counsel need only advise the defendant that the charges may carry a risk of adverse immigration consequences; but when the consequence is clear, counsel has a duty to give the correct advice. In Padilla, constitutionally competent counsel would have advised the defendant that his conviction for drug distribution made him subject to automatic deportation.

Does the Padilla ruling really change the role of the criminal defense lawyer? As Law.com reports, this will be the focus of a task force established by the American Bar Association (ABA)’s criminal justice section. The chair of that section, Bruce Green, told Law.com that

[The case] has reminded lawyers that they must learn about, and advise clients about, the impact of a guilty plea on their immigration status and in other significant ways beyond sentencing.

The Padilla ruling’s repercussions may extend beyond lawyers representing immigrants. Law.com reports that it is being used in cases in which guilty pleas have had consequences in areas such as employment, child custody, and housing. An Alaska appeals court invoked Padilla and ruled that a client made a prima facie case of ineffective assistance of counsel based on his attorney incorrectly telling him that his no-contest plea in an assault case would not be used against him in a lawsuit for civil damages.

The new ABA task force will look at the specific obligations created by the Padilla decision and other rulings applying it, as well as the broader implications for the role of defense lawyers.

For more on the overlap of criminal and immigration law, check out CEB’s California Criminal Defense of Immigrants. And learn the essential steps for protecting a client’s immigration status from CEB’s program Criminal Defense of Immigrants, available On Demand.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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