The Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), requires criminal defense attorneys to advise their non-citizen clients on the immigration consequences of a pending charge or plea.
The following FAQs are designed to provide defense attorneys with a general background on the Padilla holding as well as other information relating to the immigration consequences of criminal convictions. The FAQs should not be used as a substitute for defense counsel’s duty under Padilla. Furthermore, the immigration consequences of a particular charge will depend on the client’s individual circumstances, such as immigration history and prior criminal record. General descriptions of the law are not helpful without understanding a client’s personal situation. These answers to these FAQs do not constitute legal advice.
If you have a non-citizen client and want to discuss the possible immigration consequence, please do not hesitate to e-mail or call me. I do not charge a fee for initial inquiries and/or communications. In fact, I encourage defense attorneys to call me. Your e-mail and phone call will be returned promptly because keeping non-citizen defendants in the U.S. is important to me. I understand that ascertaining the immigration consequences may feel like a daunting task for defense attorneys. I am here to help.
- Q: What is the holding in Padilla v. Kentucky?
A: Defense attorneys have a Sixth Amendment duty to advise their noncitizen clients of the immigration consequences of a pending charge or plea. Prior to Padilla, the Wisconsin Court of Appeals held that deportation was a collateral consequence of a conviction, and therefore “counsel need not inform an alien defendant of the immigration consequences of a guilty plea.” State v. Santos, 136 Wis.2d 528, 531-32, 401 N.W.2d 856, 858 (Ct. App. 1987). Given the serious nature of deportation (such as exile and separation from loved ones), the Court in Padilla found the distinction between direct and collateral consequences to be ill-suited in the immigration context.
- Q: What is defense counsel’s Sixth Amendment duty under Padilla?
A: For cases where the immigration consequence is clear and succinct, a defense attorney must state the precise consequence instead of simply giving an equivocal warning (e.g. “Your plea may result in deportation” is not good enough). In fact, since Padilla, several courts have admonished defense attorneys for giving equivocal immigration advice when the immigration consequence was “truly clear.” See, e.g., United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (A “criminal defendant who faces almost certain deportation is entitled to know more than it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”) (emphasis added).
In cases where the potential immigration consequence is unclear or ambiguous, a general immigration warning is sufficient (e.g. “Your plea may result in deportation.”).
- Q: What is the definition of a clear and succinct immigration consequence?
A: The Supreme Court in Padilla did not explain when an immigration consequence qualifies as clear and succinct. However, given that Padilla involved a drug conviction, it is safe to say that the deportation consequences flowing from a controlled substances conviction will certainly qualify as a clear and succinct immigration consequence.
Beyond drugs, the case law post-Padilla has tended to define “clear and succinct” to mean any deportable offense under the plain language of the Immigration & Nationality Act (“INA”). If an immigration consequence is clear from the text of the INA, then defense counsel is obligated to explain that immigration consequence to non-citizen clients.
- Q: Does that mean a defense attorney has to review the INA to determine if an offense triggers a clear and succinct immigration consequence?
A: Yes, unless defense counsel hires an immigration attorney to do the research and analysis instead. The relevant section of the INA involving deportable offenses is located at 8 U.S.C. § 1227(a)(2). The definition of an “aggravated felony,” which is one of the most serious grounds for deportation, is located at 8 U.S.C. § 1101(a)(43).
- Q: Can a defense attorney satisfy the Sixth Amendment duty under Padilla by reading the general immigration warning contained in the plea questionnaire?
A: No. The Court in Padilla contemplated a meaningful discussion on possible deportation between defense counsel and client. A defense attorney’s mere recital of the general warning contained in the plea questionnaire is not a meaningful discussion, especially given that most plea questionnaires are completed and signed on the day of the plea hearing.
More importantly, the Wisconsin plea questionnaire only contains the general, equivocal warning found in Wis. Stat. § 971.08(1)(c) that a plea of guilty or no contest “may result” in an immigration consequence. If deportation is a virtual certainty, then a defense attorney has committed a Padilla violation by only giving an equivocal immigration warning at the time the plea questionnaire is signed.
Finally, a defense attorney’s duty under Padilla requires investigation prior to a plea agreement being reached. A plea questionnaire is only completed after the plea bargaining stage has ended.
- Q: If a court gives the mandatory immigration warning under Wis. Stat. § 971.08(1)(c), then hasn’t the prejudice been removed if defense counsel fails to advise a client about deportation?
A: The Wisconsin Supreme Court as well as the Court of Appeals has not reached this issue yet, but it is doubtful that a judge’s recital of the immigration warning will insulate a defense attorney from a Padilla violation. The Wisconsin Supreme Court acknowledged that the mandatory immigration warnings under Wis. Stat. § 971.08(1)(c) “is a court-oriented, statutorily protected right” and therefore “distinct from that of Padilla.” State v. Negrete, 2012 WI 92. In other words, the point of court’s mandatory immigration warnings is to put a defendant on notice of that possibility. In contrast, Padilla is a Sixth Amendment duty of effective counsel.
Several courts have already found that a court’s general immigration warning will not bar a claim under Padilla. For example, in Hernandez v. Florida, the Florida Supreme Court held that a court’s recital of a general immigration warning during the plea colloquy does not bar a claim of ineffective assistance of counsel because “Padilla requires from counsel more than this type of equivocal warning” and thus “the trial court’s warning could not have sufficiently removed the prejudice.”
- Q: Besides deportation, are there other immigration consequences that defense attorneys need to advise clients about?
A: Yes. A client can also be inadmissible from the U.S. if convicted of certain crimes. The most common inadmissible convictions are drug offenses and crimes involving moral turpitude. The criminal inadmissibility provisions are found in 8 U.S.C. § 1182(a)(2).
- Q: Why is inadmissibility important?
A: A noncitizen who wants to apply to become a permanent resident (i.e. a “green card holder”) must be admissible to the U.S. An inadmissible conviction, such as possession of cocaine, will result in denial of permanent residency and removal from the U.S.
A permanent resident also must avoid inadmissible convictions if he or she travels frequently abroad. Due to changes in the law in 1996, a returning permanent resident is considered a new applicant for admission if previously convicted of an inadmissible offense. An inadmissible conviction for a returning permanent resident will result in removal proceedings and possibly removal if relief is not available in immigration court. An inadmissible conviction could also result in detention, even for long-time permanent residents.
- Q: Can a permanent resident be inadmissible but not deportable?
A: Yes. A single conviction for simple possession of marijuana of 30 grams or less for one’s own person use is not a deportable offense. See 8 U.S.C. § 1227(a)(2)(B)(i). In fact, it is the only drug offense that is not a deportable conviction.
There is no such “minor marijuana offense” exception on the inadmissibility side. This means that while a permanent resident convicted of a single conviction of marijuana of 30 grams or less is not deportable, inadmissibility will be triggered if the permanent resident travels abroad and seeks admission to the U.S.
This is why I always provide explicit travel warnings to permanent residents who will be placed into removal proceedings for an inadmissible offense if they travel internationally.
- Q: Undocumented individuals can be deported simply for being here without legal immigration status, so why does a pending criminal matter really matter? Won’t they just be deported after the criminal case is resolved anyway?
A: Not necessarily. An undocumented person may obtain lawful immigration status through a family member or through relief available in immigration court. An undocumented immigrant who is convicted of either an inadmissible or deportable offense is foreclosed from a discretionary form of relief in removal proceedings called cancellation of removal. An inadmissible or deportable conviction will also subject an undocumented individual to mandatory detention. A person who has lived here without status for a long time may have a lot to lose if convicted of certain offenses, including permanent separation from U.S. citizen spouses, children, and parents.
- Q: If a client does not tell his defense attorney that he is a non-citizen, how can it be the defense attorney’s fault if the immigration consequences are not discussed?
A: The case law has overwhelmingly found that it is defense counsel’s duty to ascertain a client’s immigration status. See, e.g., Commonwealth v. Clarke, 949 N.E.2d 892, 905 (Mass. 2011) (“[t]hat the defendant’s counsel failed to ascertain that the defendant was not a U.S. citizen may be sufficient to satisfy” ineffectiveness prong under Padilla “because effective representation requires counsel to gather at least enough personal information to represent him”); Salazar v. State, 361 S.W.3d 99, 102 (Tex. Ct. App. 2011) (“[c]ounsel’s duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the client’s individual circumstances.”). In fact, one state supreme court found even before Padilla that a defense attorney has an obligation to determine a client’s immigration status. State v. Paredez, 101 P.3d 799, 805 (N.M. 2004) (“[w]e hold that criminal defense attorneys are obligated to determine the immigration status of their clients.”).
- Q: How can a defense attorney find out if a client is not a U.S. citizen?
A: The best way is to ask every client at the start of representation the following question: where were you born? If the answer is in the United States, Puerto Rico, or another U.S. territory, then the client is a U.S. citizen. If the answer is no, then further investigation is needed.
A defense attorney should not assume based on ethnic background or the presence (or lack) of an accent. Some individuals who are undocumented or even lawful permanent residents were brought to the U.S. at a very young age and therefore have no discernible foreign accent. In contrast, a naturalized U.S. citizen may still have a foreign accent.
- Q: Can a misdemeanor result in deportation?
A: Yes. Immigration law does not distinguish between misdemeanors and felonies. Rather, it is the nature of the offense that triggers an immigration consequence. For example, child neglect is a deportable offense under the plain language of the INA. See 8 U.S.C. § 1227(a)(2)(E)(i). A misdemeanor conviction under Wis. Stat. § 948.21(1)(a) will therefore result in removal proceedings for even long-time lawful permanent residents.
Likewise, simple possession of cocaine is clearly a deportable offense even though it is only a misdemeanor under Wisconsin law. The only drug offense that will not trigger deportability is a single conviction for simple possession of marijuana of 30 grams or less for one’s own personal use.
These are only two examples. There are other misdemeanor convictions under Wisconsin law that may result in serious immigration consequences.
- Q: A felony will always result in deportation, correct?
A: Not necessarily. Some permanent residents with no conviction record may be convicted of certain felonies and not be deportable. For example, while second-degree recklessly endangering safety is likely a crime involving moral turpitude, it may not result in removal proceedings for a permanent resident if the offense was committed beyond five years of “admission.” See 8 U.S.C. § 1227(a)(2)(A)(i) (felony CIMT committed within 5 years of admission is a deportable offense). Nonetheless, in this hypothetical, a reckless endangerment conviction would likely be an inadmissible offense, and thus international travel would have to be avoided.
Moreover, negligent offenses are not considered crimes involving moral turpitude. For this reason, serious offenses such as homicide by negligent operation of a vehicle in violation of Wis. Stat. § 940.10 are not deportable offenses.
- Q: Does the length of a sentence matter?
A: It depends. There are some offenses that will render a noncitizen deportable regardless of the sentence. For example, possession of cocaine is a deportable offense even if the defendant is not sentenced to any jail time.
However, there are other categories of offenses that will trigger the aggravated felony designation if the sentence is one year or longer. Importantly, it does not matter if the sentence is stayed or actually imposed. A stayed sentence of one year or longer does not protect a client from having been convicted of an aggravated felony.
The aggravated felony designation is by far the most serious category of deportable offense because it forecloses discretionary relief for lawful permanent residents and will result in summary removal for non-permanent residents.
For undocumented clients, actual jail time of 180 days or more may foreclose relief available in immigration court. The discretionary relief called cancellation of removal requires good moral character. An individual who has been confined in the aggregate for 180 days or more is per se barred from establishing good moral character. See 8 U.S.C. § 1101(f)(7).
- Q:Which offenses qualify as an aggravated felony if the sentence is one year or longer?
A: The answer is contained in the various subsections of the definition of an aggravated felony in 8 U.S.C. § 1101(a)(43). The following categories of offenses will be considered an aggravated felony if the sentence (whether stayed or imposed) is one year or longer:
- A “crime of violence” as defined under 18 U.S.C. § 16. 8 U.S.C. § 1101(a)(43)(F).
- A theft offense, including receipt of stolen property. 8 U.S.C. § 1101(a)(43)(G).
- A burglary offense. 8 U.S.C. § 1101(a)(43)(G).
- An offense which is either falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of 18 U.S.C. § 1543 or is “described in” 18 U.S.C. § 1546(a) (relating to document fraud). 8 U.S.C. § 1101(a)(43)(P).
- An offense “relating to” commercial bribery, counterfeiting, forgery, or trafficking in vehicles (where the identification numbers have been altered). 8 U.S.C. § 1101(a)(43)(R).
- An offense “relating to” obstruction of justice, perjury or subornation of perjury, or bribery of a witness. 8 U.S.C. § 1101(a)(43)(S).
- An attempt or conspiracy to commit any of these offenses. 8 U.S.C. § 1101(a)(43)(U).
- Q: Can a deferred prosecution agreement avoid an immigration consequence?
A: No, if the DPA requires a plea of guilty or no contest and the judge orders some restraint on liberty, such as fulfilling all of the probationary conditions in the DPA. Immigration law contains its own definition of a “conviction” that is purposely expansive to include DPAs involving a plea of guilty or no contest and court-ordered restraint on liberty. See 8 U.S.C. § 1101(a)(48)(A).
It will remain a “conviction” for immigration purposes even if the plea is allowed to be withdrawn and the charge dismissed pursuant to the DPA.
On the other hand, a DPA involving no plea of guilty or no contest, as well as no admission of facts sufficient to warrant a finding of guilt, will not constitute a conviction under immigration law.
- Q: What about expungement?
A: Expungement under Wis. Stat. § 973.015 does not ameliorate the immigration consequences of a conviction. See Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005) (expunging a judgment under a rehabilitative statute is still a conviction under immigration law).
In fact, an expungement may even make matters worse by erasing the conviction from public view. Post-conviction relief may be the only option, and that would first require a motion to “un-expunge” the case in order to obtain the plea and sentencing transcripts.
- Q: Does a client’s conviction record matter when assessing the potential immigration consequences of a pending charge or plea?
A: Yes. A prior conviction coupled with another conviction can result in serious immigration consequences. A foreign national is deportable for having been convicted of two or more crimes involving moral turpitude if the offenses do not arise out of a single scheme of misconduct. See 8 U.S.C. § 1227(a)(2)(A)(ii). For example, a permanent resident convicted of misdemeanor theft in 2012 and then separately in 2013 is deportable.
Similarly, while a single conviction for simple possession of marijuana of 30 grams or less is not a deportable offense, two convictions for simple possession of marijuana will result in removal proceedings.
When analyzing the immigration consequences of a pending charge or plea, I always to ascertain the client’s criminal history. Without this information, I cannot fully evaluate the immigration consequences of a pending charge.
- Q: Can an ordinance violation cause an immigration problem?
A: With respect to deportability, the answer is no. In general, only a criminal conviction will render a person deportable. An ordinance violation is civil in nature and is not considered a conviction under immigration law because the Constitutional rights guaranteed for criminal defendants are not applicable to individuals charged with a civil ordinance violation.
However, an ordinance violation could trigger inadmissibility. Unlike deportability, a criminal conviction is not necessary for a person to be considered inadmissible. A foreign national can be found inadmissible for simply admitting having committed an inadmissible offense, or by admitting to the essential elements of an offense. If a foreign national pleads guilty to the elements of possession of marijuana, it may be considered an inadmissible offense even if it is only a civil ordinance violation.