Right to Advice on Immigration Consequences of Plea
On March 31, 2010, the Supreme Court of the United States held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that the right to effective assistance of counsel under the Sixth Amendment of the Constitution imposes a duty on criminal defense counsel (and public defenders) to advise their clients of the clear immigration consequences of a plea. It applied the ineffective assistance of counsel test under Strickland v. Washington, 466 U. S. 668 (1984), despite the fact that immigration consequences might be labeled a collateral consequence of a guilty plea.
Padilla concerned a drug conviction, where almost invariably there are serious immigration consequences, including deportability and inadmissibility. As Justice Alito pointed out in his concurrence, however, often the immigration consequences of a plea are not so clear. In that situation, criminal defense counsel have at least a duty to tell a noncitizen defendant that the plea may cause immigration problems. They must also avoid giving wrong advice on the immigration consequences of a plea. (The criminal defense attorney in Padilla allegedly said that the plea to transporting a large amount of marijuana would create no immigration problems because the defendant had been a permanent resident for a long time.)
The easiest way for criminal defense attorneys to meet their duty under Padilla is simply to consult with an immigration lawyer with removal defense experience. Several Bay Area criminal defense attorneys either consult with Scott Mossman directly or refer their clients to our office. Noncitizens represented by the San Francisco, Alameda, and Contra Costa public defender offices also have consulted with Scott on their own initiative.
Scott's services include a thorough review of the defendant's immigration and criminal histories, consultation with the criminal defense attorney or public defender, preparation of a confidential opinion letter that explains his advice and the steps to take to minimize the immigration consequences of a plea, and answering any questions the defendant or attorney may have.