Padilla v. Kentucky: Strickland rights expanded to include immigration

Categories: Immigration Lawyer Blog San Diego

This morning the United States Supreme Court, in a strong 7-2 decision, held that the immigration consequences of a plea bargain MUST be explained to a criminal defendant.  At a minimum the court was expected to hold that “affirmative misadvice” was a violation of the constitutional right to effective assistance of counsel.  However, in this opinion, the Court goes even further.  Although it does not require criminal attorneys to become experts in immigration law, it does require that they at a minimum have a basic and accurate understanding of immigration law and, where the complexities go beyond their understanding they must advise their client of that fact.

Perhaps even more notable however is the language the court used in reaching its decision.  The court declined to categorize removal (deportation) as merely a “collateral consequence,” reaffirming its earlier statement that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.”  That removal (deportation) is high stakes is not news.  However, in any case where the Supreme Court recognizes the severity of the punishment of removal (deportation), immigrant advocates must use the opportunity to continue to push for a constitutional right to counsel in immigration proceedings.

The Supreme Court has never ruled on whether immigrants have a constitutional right to counsel at government expense in immigration proceedings, but recent decisions may indicate that the court would be sympathetic to such a claim.  The Court states that Congress has “raised the stakes” of criminal convictions for noncitizens.  As Congress has increased the number of crimes requiring automatic removal, so too must the legal protections provided to immigrants facing the possibility of removal increase.

If immigration law is too complex for a criminal attorney to be required to learn it before negotiating a plea bargain, what makes anyone think it possible for an immigrant facing removal (deportation) to be able to understand it any better.

Click here to read my original post on Padilla v. Kentucky:

Click here to read the opinion: