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If a permanent resident alien conceals his status from his criminal defense attorney and pleads guilty to an offense

Nicholasville, KY |

for which he can be deported, does the attorney's lack of knowledge of his alien status constitute ineffective assistance of counsel per Padilla v. Kentucky?

Attorney Answers 7

Posted

Doubtful. Plus the Judge will advise you. You cannot conceal information from your attorney and then blame the attorney for not knowing that information.

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Posted

I would say no

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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Posted

I do not think so. Moreover, the judge should instruct you about immigration consequences of a conviction and will put you on notice.

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Posted

I do not think so. Moreover, the judge should instruct you about immigration consequences of a conviction and will put you on notice.

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1 comment

Asker

Posted

The defendant did not inform his defense attorney therefore the court, the prosecutor and the defense attorney were unaware of his alien status at the time he entered the guilty plea. In other words, the defendant represented himself as a citizen. Will he be barred from raising the defense of ineffective assistance of counsel in order to attempt to set aside a guilty plea?

Posted

It would be very difficult to establish IAC under those circumstances. I have been involved in cases at the appeal level where an otherwise reasonable IAC claim was rejected by the courts because the attorney relied on the misrepresentations of the defendant. Maybe if the attorney had some reason to know or suspect the defendant's alien status there would be something to work with, but even so this would be a tough one.

Remember that in Padilla the attorney's failure was not merely failure to warn the defendant about potential immigration consequences but rather providing the defendant with advice that was affirmatively false.

I would say the claim is arguable, but probably not winnable. But I have been wrong more often than I care to remember.

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Posted

The only person whose opinion matters on such an issue is the actual judge. Remember you must show: 1) ineffective assistance, and 2) prejudice, both of which there are arguments for and against. Hire a good attorney and make sure to tell them the truth.
Regards,
Nicklaus Misiti
Law Offices of Nicklaus Misiti
212 537 4407

Legal disclaimer: The statement above is general in nature, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.

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Posted

Padilla v. Commonwealth of Kentucky
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued October 13, 2009
Decided March 31, 2010
Full case name Jose Padilla, Petitioner v. Commonwealth of Kentucky
Docket nos. 08-651
Citations 130 S.Ct. 1473, 176 L.Ed.2d 284
Prior history State circuit court denied motion for post-conviction relief; state appeals court reversed; Kentucky Supreme Court reversed, affirming the trial court's denial of Padilla's motion, 253 S.W.3d 482 (Ky. 2008).
Subsequent history Remanded to Kentucky courts
Holding
The lawyer for an alien charged with a crime has a constitutional obligation to tell the client if a guilty plea carries a risk that he will be deported.
Court membership
Chief Justice
John G. Roberts
Associate Justices
John P. Stevens · Antonin Scalia
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Case opinions
Majority Stevens, joined by Kennedy, Ginsburg, Breyer, Sotomayor
Concurrence Alito, joined by Roberts
Dissent Scalia, joined by Thomas
Laws applied

Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is a case in which the United States Supreme Court decided that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration consequences.

The duties of Counsel recognized in Padilla are broad. After Padilla, where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration.

After Padilla, there has been significant litigation in the lower courts about whether attorneys are required to advise their criminal clients about other consequences of convictions.
Background

José Padilla was born in Honduras in 1950. He later immigrated to the United States and became a lawful permanent resident.[1] Padilla served in the US military during the Vietnam War and received an honorable discharge.[1] As of 2010, Padilla had been a lawful resident in the United States for more than 40 years.

In 2001, Padilla was working as a commercial truck driver when he was arrested in Kentucky for transporting marijuana. His defense attorney told him that he "did not have to worry" about the conviction affecting his immigration status, so he pled guilty pursuant to a plea bargain.[2] However, this advice was incorrect, as Padilla's deportation was virtually automatic.[3] In 2004, Padilla filed a pro se motion for post-conviction relief, alleging that he had been given bad advice from his attorney.

The Sixth Amendment, as interpreted by the Court in Gideon v. Wainwright, guarantees criminal defendants legal counsel. Strickland v. Washington, a subsequent decision, further requires that defendants receive effective counsel. If defendants receive ineffective assistance of counsel, they may be able to get their convictions overturned. Traditionally, defense attorneys were only required to advise their clients of the direct consequences of convictions: the sentence likely to result from a plea bargain, the maximum sentence one might face at trial, and the risk of conviction at trial. The Sixth Amendment does not require attorneys to tell their clients about any collateral consequences: civil penalties such as loss of professional licenses, loss of government benefits, and loss of voting rights. Before Padilla, deportation was considered a collateral consequence, and thus not a consequence about which attorneys had to provide legal advice.

Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the S

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

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Frank Mascagni III

Frank Mascagni III

Posted

Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the Sixth Amendment. Padilla won his case in the Kentucky Appellate Court, but the Commonwealth requested the Kentucky Supreme Court hear the case on discretionary review. That court applied a harsh version of the collateral consequences rule, reasoning that whether Padilla’s attorney failed to advise him or affirmatively misadvised him before his plea made no difference.[4] The court held that even affirmative misadvice about deportation provided no grounds for relief under Strickland.[5][6] As the Supreme Court agreed to hear it,[7] the case posed two questions: (1) whether the mandatory deportation that results from a guilty plea to trafficking in marijuana is a "collateral consequence" and counsel is thereby relieved of an affirmative duty to advise his client about it in accordance with the guarantees of the Sixth Amendment; and, (2) assuming deportation is a "collateral consequence", whether counsel's gross misadvice about deportation constitutes a ground for setting aside a guilty plea that is induced by that advice. Ultimately, the Court re-framed the case in a way that made the collateral consequences doctrine irrelevant. Decision The Supreme Court reversed the Kentucky Supreme Court's decision. The Supreme Court held that criminal defense attorneys are duty-bound to inform clients of the risk of deportation under three circumstances. First, where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration consequences.[8] Stevens' majority opinion Writing for the Court, Justice John Paul Stevens began his analysis by tracing the history of federal immigration law and its close historical connection between a criminal conviction and deportation. Ninety years ago, deportation occurred only for a narrow class of crimes and even then was discretionary.[3] Over time, that discretion has been limited, and the class of deportable offenses has expanded.[3] Now, a conviction for drug trafficking means removal is “practically inevitable”.[9] As a threshold matter, the Court declined to apply the direct/collateral consequences distinction that had developed in the lower courts, a distinction the Supreme Court itself had never recognized.[10] The Court instead emphasized that deportation is a unique and "particularly severe penalty."[11] In addition, although deportation is civil rather than criminal, it has been closely connected to the criminal process for nearly a century.[10] Given this connection, it was difficult for the Court to classify deportation as either a direct or collateral consequence.[12] Regardless of whether the collateral consequences rule is an appropriate way of analyzing ineffectiveness cases, a question the Court did not decide, the Court found it “ill-suited” to evaluating Padilla’s deportation-related claim.[13] The court thus concluded that advice about deportation is not categorically removed from analysis under the Court's decision in Strickland v. Washington, and so applied Strickland's two-pronged test to Padilla's claim.[12] The bulk of the Court's analysis focused on the attorney's performance under Strickland. In analyzing the performance prong, the Court first examined professional norms and practices. It determined that the weight of current professional norms indicates that attorneys must advise their clients of the risk of deportation.[12] Specifically, professional standards promulgated by the American Bar Association, the National Legal Aid and Defender Association, the Justice Department, and legal scholars all indicate that an attorney must advise his or her client of the risk.[14] Moreover, avoiding deportation may be more important to t

Asker

Posted

I've read the case and understand the court's holding. The issue in my scenario is whether the defense attorney provided effective counsel when the defendant failed to disclose his alien status, thereby allowing the defense attorney to proceed on the assumption her client was a citizen not subject to deportation. Padilla does not specifically address the narrow issue of attorney advice based on a lack of all the facts, intentionally withheld by her client. Since the attorney did not inquire as to the citizenship of her client, her client intentionally withheld the information, the attorney proceeded to advise him as if he were a citizen not subject to deportation.

Frank Mascagni III

Frank Mascagni III

Posted

I do not think the trial judge, who will be called upon to rule on a state claim per RCr 11.42, (if filed at the trial level) would grant a defendant's claim based on the defendant's failure to disclose all the facts in the attorney-client relationship. The full impact of the Padilla decision has not been fleshed out in KY jurisprudence since the 2010 opinion.

Asker

Posted

Thank you. That's what I was getting at. This may be the case IF the defense attorney does not have a duty to ascertain the citizenship status of her client.

Frank Mascagni III

Frank Mascagni III

Posted

Pre-Padilla, I would submit defense counsel had little, if any, obligation in the ordinary course of defense of a criminal charge to make inquiry; but now, I would submit defense counsel should make inquiry in the representation as to the impact of a criminal conviction on the client's status with ICE.

Asker

Posted

It is not yet determined whether defense counsel has a duty to inquire, absent some legitimate reason to inquire. Not all immigrants are brown and speak with an accent. :-)

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