Supreme Court to Clarify Criminal Attorney’s Obligations to Noncitizen clients

Categories: Immigration Lawyer Blog San Diego

Padilla v. Kentucky, Docket No. 08-651

Next week, the Supreme Court will take on a case to answer whether inaccurate immigration advice constitutes ineffective assistance of counsel.

As immigration sanctions from crimes have stiffened over the years, criminal attorneys are becoming increasingly aware that simply pleading these cases in exchange for less jail time is not always in the best interest of the client.  Unfortunately, this realization often comes after the fact when the immigrant is in removal proceedings and seeks to withdraw their plea.

Criminal lawyers have four options when encountered with an immigrant client; don’t bring up the immigration consequences; give advice to the best of your ability; tell the client you don’t know the answer; or lastly LOOK IT UP.

Attorneys do not, and should not be required to know everything.  That’s why organizations specializing in assisting immigrants continually publish manuals and provide other support for criminal attorneys in this situation.  The strongest phrase in an attorney’s vocabulary is “I don’t know, but I’ll look into it and get back to you.”

Padilla’s attorney pretended to know everything and wound up possibly getting his client deported.  Whether the Supreme Court decides that attorneys need to simply stay quiet if they don’t know the answer, or that they have to give accurate advice, this case should establish clearly that wrong advice is even worse than none at all.

To read the briefs on this case go to: http://www.abanet.org/publiced/preview/briefs/oct09.shtml#padilla

–Danielle