How much immigration law does a criminal defense attorney need to know when representing a non-citizen client?
A considerable amount, it seems now. On March 31, 2010, the United States Supreme Court ruled that criminal defense attorneys have a Sixth Amendment duty to inform a non-citizen client of any immigration consequences they will suffer as a result of a guilty plea. The case, Padilla v. Kentucky, 559 US ___ (March 31, 2010), marks a major change in criminal defense attorneys’ obligation to foreign clients and significantly increases the responsibility of criminal defense attorneys to provide immigration law advice.
Can’t a criminal lawyer just tell his non-citizen clients “they may suffer immigration consequences if they accept a guilty plea?”
No, the high court ruled that it is not enough simply to state that the client “may suffer immigration consequences,” but instead ruled that this advice must be specific and accurate. A criminal attorney can, from a pure criminal law perspective, be perfectly fine in negotiating a plea deal for their client, but at the same time fail miserably, when that plea deal fails to fully take into account the immigration consequences of the conviction. Depending on the alien’s circumstances, a guilty plea for a crime that is classified under immigration law as a “felony” may subject the alien to almost certain deportation, even though in the criminal context the alien suffered parole from Mother. Many misdemeanors, viewed from an immigration perspective, can subject an alien to removal proceedings. In a large number of cases, a minor change in the guilty plea can decide whether an alien qualifies for relief from removal or is barred from applying before an immigration judge.
What are the possible consequences of not providing an alien with immigration advice regarding a plea agreement?
The main consequence that a criminal lawyer can suffer is the loss of his reputation. Past clients talk to future clients, and while your lawyer may have done the impossible by negotiating parole alone, if they are deported from the country, they are unlikely to speak highly of the job that lawyer did. In addition, when negotiating a guilty plea, district attorneys and the ADA are increasingly demanding that the defense attorney discuss the immigration consequences and inform them that they adequately counseled their clients. The district attorney is understandably unwilling to waste time negotiating a guilty plea when the defendant will simply drop it in the future due to inadequate counsel from his criminal defense attorney. A criminal attorney who is not prepared with the possible immigration consequences may make a fool of himself at the negotiating table when an ADA offers them a plea that takes immigration into account. In addition, they are increasingly required to attest to the record as part of a plea agreement that they informed their client of specific immigration consequences. Additionally, if a post-Padilla motion to quash is filed, there are certain responsibilities of the criminal defense attorney. They are often required to draft lengthy affidavits outlining their representation and advice. They are sometimes required to attend evidentiary hearings and testify under oath as to their representation, while their former client’s new attorney will try to cross-examine them into admitting ineffective assistance. Well this can be humiliating, it also takes time from your current customers and your personal life and of course you can’t bill anyone. Other sources, including the American Bar Association, criminal defense and public defender organizations, authoritative treaties, and state and municipal bar associations, have agreed that the defense attorney has a duty to properly report the immigration consequences of a criminal conviction. Although to date we have not heard of any bar association doing this, given that Padilla’s decision is so recent, it would not be unheard of if there were some consequence given to defense attorneys for not fulfilling their new duty to inform their Immigration Consequences clients. After all, Padilla’s decision ruled that it was “ineffective assistance” in the sense that it did not meet the required “professional standards” of a licensed attorney. So there are clearly ethical concerns, but there may even be concerns related to bar association and malpractice if a criminal lawyer fails in this duty.
What should a criminal defense attorney do?
When a criminal defense attorney is not well versed in the immigration consequences of certain convictions, it is not recommended that you try to figure out immigration law on your own. Immigration consequences and possible forms of immigration relief are extremely complicated. It is in no way similar to the practice of criminal law and even the basic terminology is markedly different. Therefore, it is recommended that the criminal defense attorney collaborate with an experienced immigration attorney who can discuss the potential immigration ramifications before entering into a plea dispute. This advice of immigration lawyers will not only help the defense attorney to represent her client, but will also protect the criminal attorney from any potential claims for ineffective assistance in the future.