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Immigrant Legal Resources Center Steps to Advising a Noncitizen Defendant Under Padilla v. Kentucky 2010

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1663 Mission Street

A Defending Immigrants Partnership Practice Advisory 1
STEPS TO ADVISING A NONCITIZEN DEFENDANT

Suite 602
San Francisco
California 94103

UNDER PADILLA V. KENTUCKY
April 15, 2010

http://www.ilrc.org

In Padilla v. Kentucky 2 the Supreme Court held that criminal defense counsel have a
Constitutional duty to address the immigration consequences facing a noncitizen defendant. Failure to
perform this duty constitutes ineffective assistance of counsel under the Sixth Amendment. 3
The requirement to address immigration consequences in a criminal case may seem like an
overwhelming task to defenders with little experience in this area. It is a challenging area of law even to
experienced defenders. However, it can be done. Many indigent defender offices, from small counties to
state-wide organizations, have been competently providing this representation for many years. This is
possible partly because there is a large and growing number of resources aimed specifically at assisting
criminal defenders in this task. Extensive print resources, trainings, and individual consultation services
are available—many of them for free—and more will be made available now that the decision has come
out. One compilation of such resources is at www.defendingimmigrants.org. These resources address the
questions of how to make the immigration analysis itself, as well as how to structure office systems and
forms to more efficiently incorporate this representation.
This Advisory will discuss two points. First, it will discuss the scope of counsel’s duty and the steps
required to provide competent criminal defense in terms of immigration consequences. Second it will
highlight some resources that are currently available.

A. What Must I Do: The Scope of the Duty under Padilla v. Kentucky
Addressing immigration consequences in a criminal case involves similar steps to conducting a
“regular” criminal defense. Counsel must investigate and analyze the case, advise on potential
consequences, elicit the client’s wishes, and defend the case accordingly. 4
1. INVESTIGATE THE FACTS. In each case counsel must investigate the immigration status of the
defendant and other relevant facts, including family ties in the U.S.5 Relevant facts can be captured

1

This advisory was authored for the Defending Immigrants Partnership by Katherine Brady and Angie Junck of the
Immigrant Legal Resource Center, in collaboration with the Immigrant Defense Project, the National Immigration
Project of the National Lawyers Guild, the Washington Defenders Association, and Rebecca Turner.
2
Padilla v. Kentucky, 599 U.S. ____ (March 31, 2010).
3
Padilla slip opinion at * 8-9, 13. See discussion in DIP, “Duty of Criminal Defense Counsel Representing an
Immigrant Defendant after Padilla v. Kentucky” at www.immigrantdefenseproject.org.
4
This section draws from Padilla and from the published professional standards of practice that the Court
referenced as guides for determining counsel’s duty to advise, including the American Bar Association (ABA)
Standards for Criminal Justice, Pleas of Guilty (3d ed. 1999) (see Padilla slip opinion at * 9).
5
American Bar Association Pleas of Guilty Standard 14-3.2(f), commentary at p. 127.

using a questionnaire; samples are posted at www.defendingimmigrants.org. If the defendant is a
noncitizen, counsel must obtain his or her entire criminal record, which is required to make an
immigration analysis.
2. ANALYZE THE IMMIGRATION IMPACT OF KEY DEFENSE DECISIONS AND ADVISE
THE CLIENT. Based on this information, counsel should investigate the specific immigration
consequences that the plea would impose on the defendant. Counsel must consider both avoiding
deportability, and maintaining eligibility for relief from deportation (“removal”).6 Failing to provide
advice on immigration consequences, i.e. remaining silent on the subject, constitutes ineffective
assistance of counsel. 7 As with other aspects of defense strategy, in some cases counsel will be able to
advise that a plea clearly will carry a particular immigration consequence, while in other cases
counsel will advise that the plea carries a risk of a particular immigration consequence, but that it is
not clear whether the consequence will adhere.
This analysis and advice also must take place before a defendant decides to go to trial, enters a
diversion or drug treatment program, handles a charge of violating the terms of probation or of a
protection order, admits an addiction, or handles a sentencing or delinquency hearing – all of which
can carry adverse immigration consequences. If an incarcerated defendant has an immigration hold
or detainer, before obtaining release from criminal custody counsel should inform her/his client that
DHS might detain him or her. Because persons often are transferred multiple times and long
distances in immigration custody, criminal custody may be preferable.
3. ASCERTAIN THE CLIENT’S WISHES. In some cases the defendant may have to choose
whether to prioritize getting a good immigration result versus a lesser criminal penalty. Some
immigrant defendants care only about getting the smallest jail or prison term. Other immigrant
defendants would trade any concern in order to avoid removal so that they can remain with their
families. They would be willing to plead to a more serious offense, take additional jail time, or go to
trial and risk a higher sentence. A defendant can only make this crucial decision if he or she
understands the potential criminal and immigration penalties.
4. DEFEND THE CASE ACCORDING TO THE CLIENT’S PRIORITIES. If the client states
that immigration consequences are the highest priority, the defense should be conducted with this in
mind. 8 In that case the defense goals may be quite different than they would if just criminal penalties
were at stake. For example, certain minor misdemeanors carry terrible immigration penalties and
must be avoided, while some properly constructed felony pleas can be relatively safe. In fact, in
some cases defendants purposely plead up for immigration purposes. In Padilla the Court indicated
that the prosecution also should take immigration consequences into account. 9

B. Meeting Padilla’s Challenge: Resources to Help Defenders Provide
Competent Advice
How are criminal defenders, especially indigent defenders with limited budgets and time, going to be
able to provide competent representation? This is a larger discussion that will be undertaken across the
country in light of Padilla. These discussions should take account of existing resources, as well as how to
create new resources and partnerships.

6

Padilla slip opinion at * 10-11.
Id. at * 13.
8
Id. at * 16.
9
“Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants
during the plea-bargaining process. By bringing deportation consequences into this process, the defense and
prosecution may well be able to reach agreements that better satisfy the interests of both parties.” Ibid.
7

 Print Resources: There are extensive print materials written specifically for criminal defense counsel
who are representing noncitizens. For example, see state-specific analyses of the immigration
consequences of commonly charged offenses, national and state-specific manuals explaining
immigration consequences, and other free resources written for criminal defenders, as well as
information about obtaining hornbooks on the subject, at www.defendingimmigrants.org. See also
Appendix B “Resources for Criminal Defense Lawyers” in Defending Immigrants Partnership, “Duty
of Criminal Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky” at
www.immigrantdefenseproject.org.
 Training. Live and online trainings are available, both national and state- or circuit-specific. In
addition, free materials to help local experts give trainings, including power points and other
materials, can be downloaded at www.defendingimmigrants.org
 Consultation. As important as print resources and training is the possibility of obtaining expert
consultation on individual cases. Expert consultation can save a lot of time and ensure a level of
certainty in the answer. Defender offices obtain expert advice under a range of different methods, so
that not every attorney on staff needs to understand the immigration component. Offices may appoint
a research attorney to devote part-time to becoming an in-house expert, under mentorship of a more
established expert; may take advantage of free expert consultation, or else contract with non-profit or
private experts to provide consultation on difficult cases; or may move for court funding for an
immigration expert on a particular case. Private offices often require noncitizen clients to pay for
immigration consultation as part of the defense work. See discussion of various immigrant service
plan models in “Protocol for the Development of a Public Defender Immigrant Service Plan” at
www.immigrantdefenseproject.org/webPages/crimJustice.htm. There are also existing and planned
list serves so that defenders grappling with these issues may discuss common challenges.

 

 

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