STERN Law regularly consults with criminal defense counsel to provide careful analysis of a client’s immigration consequences. This service is provided pro bono for public defenders or at a reasonable hourly rate for retained counsel. Office-wide trainings are also available for a more in-depth understanding of common immigration issues.
The narrow vision of lawyering exploded in 2010 with Padilla v. Kentucky, 559 U.S. 356 (2010), when seven Justices held that important consequences such as deportation flowing automatically from the criminal conviction were part of defense counsel’s responsibility to advise under the Sixth Amendment.
For some attorneys, Padilla changed nothing; they were already considering deportation and other collateral consequences as part of representation. For others, this imposes a huge pressure to understand Immigration Law. Either way, Padilla now requires that criminal attorneys become reasonably competent in a completely new area of law. If improper or inadequate advice is provided to your client, you risk further legal action based on Ineffective Assistance of Counsel claims or malpractice. STERN Law would be glad to help you with a Padilla consultation.
Scope of the Padilla Decision
In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court considered the case of a longtime lawful permanent resident who pleaded guilty to a drug trafficking offense in reliance on his criminal defense attorney’s statement that he would not be deported. After realizing this advice was incorrect, Mr. Padilla sought to vacate his conviction based on his Sixth Amendment right to effective assistance of counsel.
The majority held that, not only was the performance of Mr. Padilla’s counsel ineffective, but that failure to affirmatively advise a client on the immigration consequences of a plea falls below the standard of a reasonable attorney. In other words, silence is not sufficient. The Court acknowledged the complexity of immigration law but concluded that when the immigration consequences of a plea are “truly clear,” a defense attorney must advise her client of these consequences. When the consequences are unclear, the attorney must at least warn the client that a risk of deportation exists.
No “Perfect” Advisal
How are you to provide the perfect advisal when you do not understand the laws of Immigration, you say? The additional problem is that even with a basic understanding, you can rarely know exactly how a plea will affect a client’s immigration status.
Immigration case law is unsettled. Predicting immigration consequences requires the application of numerous “generic definitions” listed in the federal immigration statute (such as “aggravated felony,” “crime involving moral turpitude,” “fraud”, etc) to statutes of 50 different states and countless municipalities. These generic definitions are terms of art which require calling upon experience or case law that addresses similarly worded statutes in other jurisdictions to see if this particular situation would meet the federal definition.
Immigration Judges can (un)reasonably disagree. There are hundreds of Immigration Judges all deciding how to interpret whether a statute is a “crime involving moral turpitude,” many times without case law to guide them. There is very little consistency. Often, Immigration Judges will even try to impose his/her own definition of state criminal law despite never practicing in a criminal court. This can lead to varying outcomes and requires personal experience and knowledge of the Courts.
Clients are transferred to different jurisdictions. There is no specific rhyme or reason as to where your client may end up in Immigration Court. With hundreds of thousands in immigration detention each year, clients can be transferred all over the country depending on bed space and other undisclosed factors. Meanwhile, circuit courts of appeal are creating a huge body of law on immigration issues, reaching different conclusions on the same legal questions. Unless you stay on top of the law in all eleven circuits, it is very difficult to provide advice with any certainty.
This information is not meant to cause distress, but rather sensible reason to consult immigration counsel with criminal defense experience so as to provide the necessary advice to your client.
STERN Law regularly provides Padilla consultations with criminal counsel to provide careful analysis of a client’s immigration consequences. This service is provided pro bono for public defenders or at an hourly rate for retained counsel.