Our immigration attorney Noelle Sharp is available for consultations and referrals.

Please call: 253-254-5298

Primary Location: Tacoma, WA

tacoma immigration attorney

DUTY OF CRIMINAL DEFENSE COUNSEL REPRESENTING

AN IMMIGRANT DEFENDANT AFTER

PADILLA V. KENTUCKY

April 6, 2010

On March 31, the Supreme Court issued its momentous Sixth Amendment right to counsel decision in

Padilla v. Kentucky, 599 U.S. __ (2010). The Court held that, in light of the unique severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

Some Key Padilla Take-Away Points for Criminal Defense Lawyers

1. Deportation is a "penalty," not a "collateral consequence," of the criminal proceeding. The Court held that deportation is a "particularly severe 'penalty"' and made clear that the "direct vs. collateral" distinction does not apply to immigration consequences and does not preclude ineffective assistance of counsel (IAC) claims based upon failure to provide correct advice about immigration consequences.

2. Professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel. In support of its decision, the Court relied on professional standards that generally require counsel to determine citizenship/immigration status of their clients and to investigate and advise a noncitizen client about the immigration consequences of alternative dispositions of the criminal case.

3. The Sixth Amendment requires affirmative, competent advice regarding immigration consequences; non-advice (silence) is insufficient (ineffective). In reaching its holding, the Court expressly rejected limiting immigration-related IAC claims to cases involving misadvice. It thus made clear that a defense lawyer's silence regarding immigration consequences of a guilty plea constitutes IAC. Even where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise a noncitizen client regarding the possibility of adverse immigration consequences.

4. The Court endorsed "informed consideration" of deportation consequences by both the defense and the prosecution during plea-bargaining. The Court specifically highlighted the 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.

Our immigration attorney Noelle Sharp is available for consultations and referrals.

Please call: 253-254-5298

Immigration Attorney

Primary Location: Tacoma, Washington