Pursuant to the holding in Padilla v. Kentucky, criminal defense attorneys must advise their noncitizen clients of the potential immigration consequences of a charge or plea. Specifically, the Supreme Court held that in cases where the immigration consequence is clear and succinct, a defense attorney has a Sixth Amendment duty to accurately explain it. In cases where the potential immigration consequence is unclear or ambiguous, a defense attorney’s duty under Padilla is satisfied by giving a general immigration warning to noncitizen clients.
Although Padilla is a laudable decision, its two-track holding is problematic. The post-Padilla case law has found defense attorneys to be deficient when giving only equivocal advice on deportation when the immigration consequence was clear and succinct.
How is a criminal defense attorney supposed to know if an immigration consequence is clear and succinct? What is an alternative plea to avoid deportation? I have been assisting defense attorneys with answering these questions since 2006. I offer expert immigration advice throughout the plea negotiation process so defense attorneys can not only satisfy their duties under Padilla, but find a creative plea agreement to avoid or minimize the immigration consequences.
