Criminal Defense Counsel’s Responsibility when Representing NonCitizen Clients

How much immigration law does a criminal defense attorney need  to know when representing a non-citizen client?

A considerable amount, it would now appear.  On March 31, 2010, the Supreme Court of the United States stipulated that criminal defense counsel has a 6th Amendment duty to inform a non-citizen client of any immigration consequences that will be suffered as the result of a guilty plea.  The case, Padilla v. Kentucky, 559 U.S. ___ (March 31, 2010), marks a major change in criminal defense counsel’s obligation to alien clients, and significantly increases a criminal defense attorneys responsibility to provide advice regarding immigration law.

Can’t a criminal attorney just tell their non-citizen clients “they may suffer immigration consequences if they accept a plea?”

No, the high court ruled that it is not enough to simply state that the client “may suffer immigration consequences” rather it ruled that this advice must be specific and exact. A criminal lawyer may, from a pure criminal law perspective, act perfectly in negotiating a plea arrangement for his client, but at the same time, fail miserably, where that plea arrangement does not fully account for the immigration consequences of  the conviction.

Depending on the alien’s circumstances, a plea to a crime which is classified under immigration law as an “aggravated felony,” may subject the alien to nearly certain deportation, though in the criminal context the alien suffered  mere probation.  Many minor crimes when viewed from an immigration perspective can subject an alien to removal proceedings.  In a great number of cases a minor change in the plea can decide whether an alien qualifies for relief from removal or is barred from applying in front of an immigration judge.

What are the possible consequences for not providing an alien with immigration advice regarding a plea deal?

The primary consequence a criminal attorney may suffer is a loss to their reputation.  Past clients talk to future clients and although their attorney may have performed the impossible in negotiating them only probation, if they are deported from the country they are unlikely to speak highly of the job that attorney did.

In addition, when negotiating a plea district attorneys and ADAs are increasingly requiring the defense attorney discuss the immigration consequences and inform them they properly advised their clients.  The District Attorney is understandably unwilling to waste their time negotiating a plea when defendant will simply vacate it in the future due to not having been properly advised by their criminal defense attorney.  A criminal attorney who is not prepared with possible immigration consequences can look foolish at the negotiation table when an ADA offers them a plea that takes into account immigration.  Moreover, they are increasingly being required to attest on the record as part of a plea agreement that they advised their client of specific immigration consequences.

Moreover, if a post-Padilla motion to vacate is filed there are certain responsibilities of the criminal defense attorney.  They are often required to draft lengthy affidavits describing their representation and advice.   Sometimes they are required to attend evidentiary hearings and testify under oath as to their representation while their past client’s new attorney will attempt to question them into admitting ineffective assistance.  Well this can be humiliating it also takes time from their current clients and personal life and of course is not billable to anyone.

Other sources, including the American Bar Association, criminal defense and public defender organizations, authoritative treatises and state and city bar associations, have agreed that defense counsel has a duty to correctly advise of the immigration consequences of a criminal conviction.  Although to date we have heard of no bar association doing this, being that the Padilla decision is so recent, it would not be unheard of if there was some consequence given to defense attorneys for failing in their newfound duty to advise their clients of immigration consequences.   After all the Padilla decision ruled it “ineffective assistance” in that it did not meet the “professional norms” required of a licensed attorney.  Thus, there are clearly ethical concerns but may even be bar association and malpractice concerns if a criminal attorney fails in this duty.

What is a criminal defense attorney to do?

Where a criminal defense attorney is not well versed in the immigration consequences of certain convictions, it is not recommended they attempt to figure out immigration law alone.  Immigration consequences and potential forms of immigration relief are extremely complicated.  It is not in any way similar to the practice of criminal law and even the basic terminology is markedly different.

Therefore, it is recommended the criminal defense attorney collaborate with a seasoned immigration attorney who can analyze the potential immigration ramifications before entering discussing the plea.   This immigration attorneys advice will not only aid the defense attorney in representing their client but will also protect the criminal attorney from any possible ineffective assistance claims in the future.


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