Defense Counsel to Better Inform Immigration Clients About Consequences of Criminal Convictions

It was a decision many had been waiting for; the Supreme Court’s right to counsel decision in cases of criminal conviction linked to deportation issues.

While it took a while for the decision to be rendered, it came at a time when the country is still pondering what to do with its broken immigration system; to pass immigration reform or not. Part of the law as it deals with immigrants deals with what happens to them if they are convicted of a criminal offense.

The Supreme Court decision said due to the severity of deportation and the reality that immigration consequences attach to criminal convictions, that the Sixth Amendment requires defense counsel provide competent advice to a non-citizen (immigrant) about the repercussions of a guilty plea. If this advice is not given, the immigrant may raise an ineffective assistance of counsel claim. The Padilla v. Kentucky case may have some interesting fallout as time passes, particularly if the suggested comprehensive immigration reforms included in the proposed Act do get passed.

What do criminal defense attorneys need to know about this case? The most important point to note is that deportation is “not” a collateral consequence; it is a “penalty,” and as such it is considered to be very severe one. Simply put, the direct versus collateral distinction does not apply to immigration consequences and doesn’t prevent an ineffective counsel claim if the attorney fails to offer the correct advice about immigration consequences if the immigrant pleads guilty.

Be aware that the Supreme Court also zeroed in on professional standards for attorneys dealing with cases like this. In short, counsel is required to find out the citizenship status of their client(s) and to check further and advise them about what might happen to them (deportation) as a result of alternative dispositions of a criminal case.

Furthermore, the Sixth Amendment requires that proper advice be given about the immigration fallout in a criminal case and that silence doesn’t cut it. In other words, if a defense lawyer is silent about what may happen in the face of a guilty plea; this is ineffective advice of counsel. This applies even if the deportation consequences are not clear or are uncertain.

That last thing you should take away with you if you happen to be in the role of defense counsel, is that the Supreme Court gave the nod to informed consideration of deportation consequences by defense and prosecution while plea-bargaining. They also went one step further and indicated it would be appropriate of those participating in the plea bargain to factor immigration consequences into the negotiations to end up with a conviction and sentence that reduced the possibility of deportation, but yet still served the cause of justice being done.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit or call 303.623.2721.