Effect of Padilla v. Kentucky on Defense Attorneys

In the 2010 Supreme Court Decision Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Justice Stevens, writing for the majority, imposed upon defense attorneys the burden of advising their noncitizen clients of the immigration effects on their plea bargain or case. The problem, of course, is that immigration law can be very confusing as the court itself acknowledged:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito), 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, as it was in this case, the duty to give correct advice is equally clear.

There has been much discussion over what constitutes clear consequences in this complex field and that will likely be a matter of litigation for years to come. Justice Alito, in a concurring opinion, would have only asked that defense attorneys “refrain from providing incorrect advice” and did not agree with the majority that the defense attorney had the duty to explain immigration consequences. In his view, the burden would have fallen on the client to find an immigration attorney if the client had immigration questions. However, this is not the holding of the court. Regardless of whether or not one agrees with the decision, it is now the law of the land and defense attorneys can be found to have provided ineffective counsel if their client’s immigration consequences are not explained.

For example, a Crime Involving Moral Turpitude (CIMT) can bar an immigrant or potential immigrant from adjusting status, obtaining a visa, or even renewing an already acquired visa. The effect of these crimes can change depending on the wording of the state statutes as opposed to the federal statutes. Some of these types of crimes are divisible in immigration law and require an analysis of multiple actions that constitute one crime. Breaking and entering, for example, can be a crime that bars admissibility for a noncitizen, but it may very well not be depending on the purpose or intent of the accused.

Since it is unlikely that all criminal defense attorneys will now become specialists in immigration law, many defense attorneys will likely seek out competent counsel within the complex field of immigration law. The Law Firm of Shihab & Associates is an immigration practice that has been counseling and advising immigrants for nearly two decades. In addition, the attorneys are frequently asked to give opinions or perform research for a variety of non-immigration cases being dealt with by attorneys whose client’s actions may have consequences on their immigration status. Whether it’s the effect of a divorce or death in a family law case or the repercussions of criminal activity that might affect a client’s current immigration proceedings, the attorneys at The Law Firm of Shihab & Associates are competent, professional, and innovative practitioners of immigration law. Please contact one of our attorneys at any of our four locations to both better understand your client’s position and to protect yourself by being able to provide effective counsel when dealing with a complicated and complex set of immigration rules and regulations.