Realizing Padilla's promise: ensuring noncitizen defendants are advised of the immigration consequences of a criminal conviction.

• Author: Vazquez, Yolanda
• Position: Padilla and the Future of the Defense Function

Introduction I. How Padilla "Changed" the Sixth Amendment Duty Owed to Noncitizen Defendants A. Immigration Consequences and the Sixth Amendment Pre-Padilla B. The Padilla Decision C. Understanding the Importance of Padilla II. Padilla: The Good, The Bad, and the Potentially Ugly A. Padilla and Plea-Bargaining B. Padilla and Its Two-Tiered Admonishment Test 1. Defense Attorneys and Distinguishing the Two-Tiered Requirement 2. Determining Which Admonishment Defense Counsel was Required to Follow Under Padilla III. In the Aftermath of Padilla: Ensuring that Noncitizen Defendants Will be Advised of Immigration Consequences of a Criminal Conviction A. Enforcing a Duty for Defense Counsel to Give Specific Advice Through Legislative Enactments and Ethical Rules B. Imposing a Duty for Prosecution to Inform Defendants of the Immigration Consequences of Their Pleas C. Creating a Duty for the Court to Advise as to Immigration Consequences D. Public Defender Organizations, the ABA, and Other Advocates Conclusion INTRODUCTION

On March 31, 2010, the United States Supreme Court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to warn defendants of the immigration consequences of a criminal conviction under the Sixth Amendment. (1) This decision followed decades of contrary precedent in which the majority of state and federal courts refused to create the duty under the Sixth Amendment in their jurisdictions. (2) Padilla is one of the most important Supreme Court decisions in recent years. It affords thousands of noncitizen immigrants a right that may protect their ability to remain in this country. (3)

While Padilla affirmatively answered the broad question of whether a duty exists under the Sixth Amendment to advise a defendant of the immigration consequences of a criminal conviction, it also left many questions unanswered. One critical inquiry is the extent of the advice required by the Sixth Amendment under Padilla. The majority held that "counsel must inform her client whether his plea carries a risk of deportation." (4) In addition, the court determined that when immigration law is "succinct, clear, and explicit," defense counsel is required to give his or her client correct advice regarding the immigration consequences of a criminal conviction. (5) However, if immigration law is not "succinct and straightforward," defense counsel is only required to give general advice that the plea may have adverse effects on his/her immigration status. (6) The two-tiered advice system created by Padilla has three troubling effects. First, it creates considerable uncertainty as to what constitutes sufficient advice under the Sixth Amendment. Second, the level of information that must be provided by defense counsel to her client to satisfy the Sixth Amendment is based on immigration law and its perceived complexities instead of on the client's goals. Third, the ability for defense counsel to negotiate a favorable plea that could prevent removal is not guaranteed to all noncitizen defendants.

This Article discusses the potential detrimental impact of Padilla's ambiguous holding and the creation of a two-tiered admonishment system on a defendant's ability to remain in the United States, as well as the confusion it causes for defense counsel and the court. Part I discusses the historical posture of a defendant's right to advice on the immigration consequences of a criminal conviction under the Sixth Amendment. Part II discusses the holding in Padilla, highlighting some of the key points that the case left unanswered and explores its potential failure to achieve the goal of assisting noncitizen defendants in preventing their removal from the United States. Part III suggests ways to ensure that all noncitizen defendants are given adequate counsel on the immigration consequences of criminal conviction. This Article concludes that, although the Padilla decision was an incremental and positive step toward reform in criminal representation, legislative action, increased implementation and enforcement of professional standards, reassessment of educational training, and future litigation will be necessary before all defense counsel will begin to advise clients consistently of the specific immigration consequences of a conviction and to assist in potential plea negotiations to prevent deportation of each of their noncitizen clients. If lawyers fail to build on its promise, Padilla will not be the landmark decision it could be.

1. HOW PADILLA "CHANGED" THE SIXTH AMENDMENT DUTY OWED TO NONCITIZEN DEFENDANTS

   The United States Constitution and Gideon v. Wainwright established the right to counsel in criminal trials. (7) The Supreme Court recognized that counsel during a criminal court proceeding was necessary to ensure the "fundamental human rights of life and liberty." (8) The "right of counsel" has been interpreted to guarantee the right to the effective assistance of counsel, (9) requiring assistance of counsel to be "within the range of a competence demanded of attorneys in criminal cases." (10)

   Following from this right to effective assistance of counsel, a defendant may challenge a conviction or plea bargain by putting forth a Sixth Amendment claim of ineffective assistance of counsel. When deciding whether defense counsel has violated a client's Sixth Amendment right to counsel, courts use the U.S. Supreme Court's Strickland test. (11) To prevail on an ineffective assistance of counsel claim under Strickland, the defendant must prove: (1) that his counsel's performance was deficient; and, (2) that the deficiency in his counsel's performance prejudiced his defense. (12) Plainly speaking, under Strickland, counsel's representation must fall "below an objective standard of reasonableness" and there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (13)

   The U.S. Supreme Court extended the Strickland test to encompass guilty pleas. In Lockhart v. Hill, the Supreme Court held that Strickland's two-prong test applied to challenges of guilty pleas based on ineffective assistance of counsel claims. (14) While the analysis for the first prong of Strickland remains the same for guilty pleas, the second prong, the "prejudice prong," is satisfied if the defendant shows that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. (15)

   Although the right to effective assistance of counsel was established under the Sixth and Fourteenth Amendments many years ago, (16) the scope of the advice that counsel is obligated to give clients continues to evolve. (17)

   1. Immigration Consequences and the Sixth Amendment Pre-Padilla

      Prior to March 31, 2010, lower federal and state courts were divided over whether effective assistance of counsel under the Sixth Amendment required a lawyer to advise his client of the immigration consequences of a criminal conviction. Most adopted and applied the "collateral consequences doctrine" (18) and the Court's classification of immigration law. The Court held in Brady v. United States that under the Fifth Amendment, courts were only responsible for admonishing the defendant on the "direct" consequences and not the "indirect" or "collateral" consequences of a plea. (19) The Court held in Fong Yue Ting v. United States that deportation was not considered a criminal punishment but rather a civil penalty. (20) While these cases were never analyzed by the Supreme Court under the Sixth Amendment, state and federal jurisdictions incorporated these holdings into their Sixth Amendment jurisprudence. (21) As a result, the majority of jurisdictions refused to impose a duty on defense counsel to advise as to immigration consequences under the Sixth Amendment because immigration was deemed a "collateral" matter. (22)

      Since the majority of state and lower federal courts determined that defense counsel had no duty to advise on immigration issues, criminal defendants were typically prevented from arguing that counsel's failure to give such advice violated their Sixth Amendment right. (23) More specifically, noncitizen defendants were unable to prevail on ineffective assistance of counsel claims because failure to advise as to immigration consequences could not satisfy Strickland's first prong, which required a showing of "unreasonable" or "deficient" assistance. (24)

      In the ensuing years, immigration law and its enforcement became increasingly intertwined with the criminal justice system and the ramifications of the collateral consequence doctrine became clear: the number of criminal charges that resulted in immigration consequences increased, immigration relief available for those who were convicted of a crime decreased, and immigration enforcement targeting those with criminal convictions increased. (25) As a result, some states and federal courts began to break from the traditional mantra that failure to advise as to the immigration consequences of a conviction could not be found to violate the Sixth Amendment. (26) Prior to Padilla, jurisdictions across the country were divided on whether the immigration consequences of a criminal conviction should be excluded from the Sixth Amendment analysis to determine whether or not counsel was ineffective in failing to provide such advice. (27)

   2. The Padilla Decision

      On March 31, 2010, everything changed. The Supreme Court issued an opinion in Padilla that shocked many, gave noncitizen defendants new hope, and left the courts and defense counsel wondering how they would implement this new duty. (28) The Court, in a sev-seven-to-two decision, declared that defense attorneys do have a Sixth Amendment duty to advise their clients of the immigration consequences of a criminal conviction. (29) The Court stated that "counsel must inform her client whether his plea carries a risk of...