Padilla v. Kentucky on Alien Criminal Defendants’ Right to Effective Counsel

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The US Supreme Court released its opinion on Padilla v. Kentucky today. The Court held that criminal defense attorneys have a duty to correctly advise alien defendants of the deportation consequences associated with pleading guilty to a charged crime. The Court pointed out that the deportation consequences for some criminal charges might be unclear or uncertain, and, in those situations, the criminal defense attorneys’ duty to inform was more limited. However, the Court stated “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

The Padilla Court expressly struck down the argument that criminal defense attorneys should only be dubbed ineffective if the affirmative advice given is incorrect. The Padilla Court stated that “it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available.”  

Additionally, the Supreme Court stated that deportation cannot be considered a collateral consequence of a guilty plea.

This case is important because many aliens with lawful permanent resident status plead guilty to criminal charges without realizing that they will be deported if they plead guilty. Many aliens do not realize that negotiating with the District Attorney and making minor changes to the plea agreement can prevent the alien from being deported or keep certain relief options, such as cancellation of removal, available.

This case will likely make it easier for many criminal aliens to reopen their criminal proceedings in an attempt to change their convictions and pleas.

If you are currently an alien in criminal proceedings, you should talk to an experienced immigration attorney about the immigration consequences resulting from a guilty plea. Contact The Nunez Firm to discuss your case. Managing attorney Jay Nunez will personally speak with you about your situation and options.

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