Plea Agreements: The Padilla Warning

April 9, 2010

(U.S. Supreme Court Decision, Padilla v. Kentucky, 539 U.S. ___ (2010), Decided Mar 31, 2010)

Immigration Counsel to Criminal Defense Attorneys and Aliens in Criminal Proceedings

In Padilla v. Kentucky, 539 U.S. ­­___ (2010), the Supreme Court held that noncitizen criminal defendants, pursuant to the Sixth Amendment right to effective assistance of counsel, have a constitutional right to competent legal advice concerning the deportation consequences of a prospective plea agreement. That is, under Padilla, criminal defense attorneys now have an affirmative duty to advise their noncitizen clients as to the possible immigration consequences (i.e. deportation or exclusion from the U.S.) associated with a particular criminal conviction.

In the United States, just under 95% of all criminal convictions are obtained as a result of some sort of plea agreement. Now, before a criminal defense attorney representing a noncitizen defendant negotiates a plea agreement, that attorney should be aware of the associated immigration consequences. Specifically, in certain circumstances that defense attorney has a constitutionally mandated duty to “inform a client whether his plea carries a risk of deportation.” In other words, the Supreme Court has explicitly brought deportation considerations into the plea-bargaining arena. Furnishing legal advice with respect to an alien’s acceptance or rejection of a plea agreement without an adequate understanding of the probable risk of deportation may render counsel’s conduct constitutionally defective, constituting ineffective assistance of counsel under the Sixth Amendment. Moreover, counsel’s failure to possess a rudimentary understanding of the relevant deportation statutes in certain limited situations may constitute almost per se ineffective assistance.

The Padilla decision is not limited to affirmative misadvice. Rather, as stated above, defense counsel has an affirmative obligation to understand the relevant immigration law before advising a noncitizen client. This affirmative duty is particularly important where the deportation statute at issue can be fairly characterized as “succinct, clear, and explicit in defining the removal consequence[s]” of a particular conviction. In such situations, defense counsel’s failure to properly admonish his client could be considered ineffective assistance per se. In addition to a plea agreement that never reaches its intended settlement result, such ineffective assistance may be grounds for a malpractice suit—imposing personal liability on defense counsel. As such, it is imperative that criminal defense attorneys be apprised of the relevant immigration rules and procedure.

Given the fact that judges presiding over contemporary removal proceedings have almost no equitable discretion, once a noncitizen has been convicted of a removable offense, that conviction will almost invariably result in the removal of the noncitizen convict. Thus, the Padilla Court reasoned, “[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important.” Criminal defense attorneys representing noncitizen defendants must be mindful of the fact that, more often than not, protecting the accused’s right to remain in the United States is more important than avoiding the criminal sentencing process.

Roby Law Associates offers criminal defense attorneys and aliens timely advice concerning the immigration consequences of proposed plea agreements. In order to provide counsel, you will be requested to provide the following:

I. Proposed Plea Agreement in Criminal Proceedings

  1. Copy of the Proposed Plea Agreement.
  2. Copy of complete Arrest Record.
  3. Copy of police notes.
  4. Copy of Ticket, if any.
  5. Copy of complete Transcript(s) of Court Proceedings.
  6. Indicate State or Federal Statutes under which Alien is being charge.
  7. Indicate State or Federal statute(s) under which plea is being made.
  8. Indicate maximum possible criminal penalty – incarceration and fine.

II. Records about Alien’s Prior History of Arrest, Detention, Charges Filed, Convictions, Alternative Sentencing, Participation in any Rehabilitative Program

If you have had any contact at all with law enforcement officers, anywhere, of any kind, U.S. or Foreign, we need to have a full history of your involvement with law enforcement authorities (including traffic/vehicular):

A. Prior Arrest or Detention by Law Enforcement Officer &
NO CHARGES WERE FILED

1. Copy of complete statement of arresting agency confirming that no charges were filed, or Copy of complete statement of applicable court order confirming that no charges were filed.

B. Prior Arrest or Detention
CHARGED FILED AGAINST YOU &
DISMISSAL or ACQUITTAL BY COURT OF LAW

  1. Copy of complete Arrest Record.
  2. Copy of record of outcome – dismissal or acquittal order.
  3. Copy of police notes.
  4. Copy of Ticket, if any.
  5. Copy of complete Transcript of Court Proceedings.

C. Prior Arrest
PLEA OF GUILT or NO CONTEST (nolo contendere) &
CONVICTION BY COURT OF LAW

  1. Copy of complete Arrest Record.
  2. Copy of record of outcome – conviction record.
  3. Copy of police notes.
  4. Copy of Ticket, if any.
  5. Copy of complete Transcript of Court Proceedings.
  6. Copy of Court Record indicating completion of your sentence: Probation or Parole Record.

D. Prior Arrest
PLEA OF GUILT, RESPONSIBILITY or NO CONTEST or CONVICTION &
PLACED in ALTERNATIVE SENTENCING or REHABILITATIVE PROGRAM

  1. Copy of complete Arrest Record.
  2. Copy of record of outcome – record including alternative sentencing or rehabilitation program.
  3. Copy of police notes.
  4. Copy of Ticket, if any.
  5. Copy of complete Transcript of Court Proceedings.
  6. Copy of Court Record indicating completion of Alternative Sentencing or Rehabilitative Program.

We urge you to call or write Roby Law Associates for legal advice on the immigration consequences of an alien’s plea in criminal proceedings before the plea is negotiated to completion.