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

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?

Nicholasville, KY -

Attorney Answers (7)

Karen-Lee Pollak

Karen-Lee Pollak

Immigration Attorney - Dallas, TX
Answered

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

Frank Mascagni III

Frank Mascagni III

Criminal Defense Attorney - Louisville, KY
Answered

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... more
Christian Schmidt

Christian Schmidt

Immigration Attorney - San Francisco, CA
Answered

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

Joshua Sachs

Joshua Sachs

Appeals Lawyer - Evanston, IL
Answered

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.

Nicklaus James Misiti

Nicklaus James Misiti

Immigration Attorney - New York, NY
Answered

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... more
Christian Schmidt

Christian Schmidt

Immigration Attorney - San Francisco, CA
Answered

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

J Charles Ferrari

J Charles Ferrari

Immigration Attorney - Los Angeles, CA
Answered

I would say no

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more

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