Immigration Consequences of Criminal Convictions

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arisingfrom a guilty plea. Defense counsel’s failure to so advise, or defense counsel’s misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The Court held specifically that when the risk of removal resulting from a guilty plea is “clear,” counsel must advise his or her client that “deportation [is] presumptively mandatory”; on the other hand, when that risk is less clear, counsel need only advise the defendant “that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 130 S. Ct. at 1483. The Court acknowledged that a “[l]ack of clarity in the law . . . will affect the scope and nature of counsel’s advice.” Id. at 1483 n.10.

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