My Criminal Defense Attorney Never Told Me I Could Be Deported!

At some point in their lives everyone comes in contact with the police, many times for simple traffic violations that do not carry serious consequences. However, many criminal offenses can and often do carry serious consequences, especially if you are not a United States Citizen. The majority of non-citizens have no idea that a conviction for certain criminal offenses could lead to the loss of their current status and deportation.

The intersection of criminal and immigration law is extremely complicated. Many times the criminal defense attorney has no idea that there are immigration consequences to pleading guilty to an offense let alone the seriousness of those consequences. If you are a non-citizen who entered a guilty plea and your defense attorney did not advise you of the immigration consequences then there may be some relief if you come in contact with the immigration system as a result.

On March 31, 2010 the United States Supreme Court decided Padilla v. Kentucky which affirmatively established that the Sixth Amendment of the United States Constitution requires a defense attorney to advise anyone who is not a citizen of the United States of the immigration consequences of pleading guilty to a criminal offense. If the criminal defense attorney did not advise of immigration consequences then the non-citizen could bring a claim of ineffective assistance of counsel.

In order to bring a successful ineffective assistance of counsel claim, you must demonstrate that the attorney’s representation fell “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.” Strickland v. Washington, 466 U.S. 668. This means that the attorney did not do what a reasonable person would have done knowing that a non-citizen was about to plead guilty to a criminal charge and that had the attorney not made that mistake, the non-citizen would be in a better position (e.g., the non-citizen would not have plead guilty).

The criminal defense attorney does not need to be well versed in immigration law and is not required to give the non-citizen a list of “what-ifs” but he is required to, at the very least, tell the non-citizen that the pending criminal charges against him may carry negative immigration consequences.

Almost three years after Padilla was decided, the Supreme Court heard the case of Chaidez v. United States on February 20, 2013. Chaidez had a big impact on the application of Padilla to cases in which the criminal defense attorney did not warn his or her client of the immigration consequences of pleading guilty. The Supreme Court said that the requirement imposed in Padilla only applied to cases that were not final as of the date that Padilla was decided, March 31, 2010. This means that if a noncitizen’s criminal conviction became final prior to March 31, 2010 then he may not use Padilla to his advantage to claim that his criminal defense attorney did not warn him of the immigration consequences of accepting a guilty plea.

This decision does not mean that a non-citizen with a final conviction prior to March 31, 2010 cannot seek relief. These individuals can establish an ineffective assistance of counsel claim under the Sixth Amendment depending on which jurisdiction their conviction took place in. In some jurisdictions the non-citizen can show that he was given misinformation regarding the immigration consequences. For example, if the criminal defense attorney said there would be no immigration consequences whatsoever. It may also be possible for a non-citizen to raise an ineffective assistance of counsel claim by showing that the criminal defense attorney also violated an established constitutional duty such as failing to negotiate effectively to mitigate harm in the plea.

Ineffective assistance of counsel claims and other errors can lead to a vacated criminal conviction. If the criminal conviction is vacated then a non-citizen may be able to reopen their immigration where they were ordered removed due to the now vacated conviction. A motion to reopen is filed when there are new facts or evidence that was not available at the time the original decision was made. A motion to reopen must be filed within 90 days after the final removal order.

If the non-citizen has already left the United States it can be extremely difficult to file a motion to reopen or reconsider. Once the criminal conviction is vacated, the non-citizen is no longer inadmissible to the United States and can simply have a family member petition for him or her to return to the U.S. in the same manner that any foreign national would gain lawful entry into the United States.