Ineffective Assistance of Counsel and Immigration
What happens when a criminal lawyer does not fully inform his client of the immigration consequences of a conviction? That lawyer has committed the sin of ineffective assistance of counsel.
The Supreme Court held recently in Padilla v. Kentucky that a criminal lawyer must give accurate advice regarding the potential consequences of an immigration conviction. Jose Padilla had spent 40 years in the United States. Although he never gained citizenship, he was a lawful “permanent resident.” In fact, he was even a Vietnam vet. He was charged (and later pled guilty) to trafficking marijuana.
His lawyer, at the time of his plea negotiations, had informed Padilla that because he had lived so long in the United States, he did not need to worry about the immigration consequences of his conviction.
However, because marijuana trafficking is an “aggravated felony” under United States law, his guilty plea meant that Padilla was deportable under federal immigration law.
Padilla appealed his conviction, and the Supreme Court found by a 7-2 decision that, in fact, his lawyer’s advice that he had nothing to worry about regarding immigration was “ineffective assistance of counsel”.
If any attorney is counseling a client regarding a criminal matter, that attorney should first determine whether the client is a citizen or not.AÃ¯Â¿Â½ The attorney should then determine whether the crime with which the person has been charged is a deportable offense.AÃ¯Â¿Â½ Even if the offense is not a deportable offense, the attorney should advise the person that laws may change and that by pleading guilty to the crime, the person may in fact be deported upon conviction.