ARE YOU ENTITLED TO LEGAL ADVICE CONCERNING THE EFFECTS OF A CRIMINAL CONVICTION ON YOUR ABILITY TO STAY IN THE COUNTRY?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Padilla v. Kentucky, 559 U.S. 356 (2010).
This case addresses the following issue:
Is a criminal defendant ever entitled to legal advice concerning the effects of a criminal conviction on deportation?
This case asked the Court if the Sixth Amendment’s guarantee of “the effective assistance of competent counsel” requires an attorney to advise a criminal defendant about the ramifications of a conviction on that defendant’s ability to remain in the United States. Id. at 1481. The Court determined that, because deportation is such a serious penalty, counsel’s failure to advise a criminal defendant on the issue is subject to the test for ineffective assistance of counsel outlined in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 1482. In the end, the Court indicated that an attorney cannot remain silent about immigration, but must either advise a defendant of the settled, known ramifications of a conviction or advise the client that the ramifications of a conviction are unclear. Id. at 1483.
In this case, the defendant was a Honduras native and lawful permanent resident for most of his life. Id. at 1477. He pled guilty to transporting marijuana in Kentucky state court, which brought about a civil deportation action against him. Id. The defense counsel provided to defendant had, at the very least, failed to advise defendant about the consequences his guilty plea could have on his immigration status, and possibly even provided completely inaccurate advice to defendant. Id. at 1478. Defendant would have demanded a trial had he known about deportation, which was “virtually mandatory” following his plea. Id.
The Supreme Court of Kentucky had placed great emphasis on the fact that deportation was what it considered to be a “collateral,” rather than direct consequence of the conviction, and was thus “outside the scope of representation required by the Sixth Amendment.” Id. at 1481. However, the Court here found this distinction unsupported by prior decisions and irrelevant to this issue of deportation. Id. Instead, the severity of deportation and the mandatory nature of deportations for certain offenses made dividing the consequence of deportation from the criminal conviction itself impossible and of little value. Id. This was sufficient to make advice regarding the civil proceeding of deportation fall under the Sixth Amendment’s promise; “Strickland applies to Padilla’s claim.” Id. at 1482.
Strickland is a two-prong inquiry, asking first if the lawyer’s conduct “fell below an objective standard of reasonableness” and, second, if the result would have been reasonable likely to have been different “but for counsel’s unprofessional errors.” Id. The Court found that “the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. It also found that deportation is such a weighty consideration it is hard to imagine a defendant won’t act differently knowing of such a threat. Id. at 1483.
The Court acknowledged that immigration law is very complex and giving advice on the subject may be outside the comfort zone of many criminal defense attorneys. Id. Thus, the Court laid out the obligations as such: “When the law is not succinct and straightforward, [counsel] need [only] advise…that pending criminal charges may carry a risk of adverse immigration consequences[, b]ut when the deportation consequence is truly clear…the duty to give correct advice is equally clear.” Id.