9.16 - 6. The Padilla Warning

• Jurisdiction: New York

6. The Padilla Warning

The U.S. Supreme Court has interpreted the Sixth Amendment right to competent counsel to encompass a non-citizen’s defense lawyer’s failure to advise a defendant, prior to his entering a guilty plea that he could or does face deportation from the United States, or, incorrect advice that he does not risk the same. Constitutionally competent counsel requires advisement of a non-citizen that a conviction after a plea of guilty makes him subject to deportation. Whether a failure to do so will result in post-conviction relief depends on whether he has been prejudiced. Before reaching its decision, the majority reviewed immigration law for the last 90 years. In light of both the steady expansion of deportable offenses and the significant ameliorative effect of Judicial Recommendations Against Deportation (JRAD), it was unsurprising that the Court of Appeals for the Second Circuit held that the right to effective assistance of counsel applied to a JRAD request or the lack thereof. The Second Circuit’s view was that a JRAD request was part of the sentencing process even though deportation itself is a civil action. However, said the Supreme Court, the JRAD is no longer part of our law. First circumscribed in 1952, Congress entirely eliminated it in 1990. In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation. An authority that had been exercised to prevent the deportation of over 10,000 non-citizens during the five-year period prior to 1996. Under present law, if a non-citizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for non-citizens convicted of particular classes of offenses. It has been largely eliminated for an offense related to trafficking in a controlled substance.

These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part . . . of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. ¹⁶⁸¹

. . . .

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance.” . . . Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation. ¹⁶⁸²

We have long recognized that deportation is a particularly severe “penalty” . . . but it is not, in a strict sense, a criminal sanction. Although . . . civil in nature . . . deportation is nevertheless intimately related to the criminal process. ¹⁶⁸³

But, since “[i]mmigration law can be complex” and “it is a legal specialty of its own[,]” lawyers who represent clients facing criminal charges in either state or federal court may not be well versed in it.¹⁶⁸⁴

There will . . . be numerous situations in which the deportation consequences of a guilty plea are unclear or uncertain. . . . When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear. ¹⁶⁸⁵

But again,

[a] holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” When attorneys know that their clients face possible exile from this country . . . they should not be encouraged to say nothing at all. Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation

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