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Padilla v. Kentucky

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Criminal Convictions, Bad Advice, and Immigration Consequences

In the recent U.S. Supreme Court case of Padilla v. Kentucky, the court held that criminal lawyers must inform a client whether his plea carries a risk of deportation.  Regarding the extent of the advice that the attorney must give, the court stated that, “[A] criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences.  But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.” 

While the court’s guidance on the advice that a criminal attorney must give appears straight-forward, it is not so simple.  How do you know whether the risk of deportation in your case falls into the category of cases in which you need to do no more than advise that the charges may carry adverse immigration consequences or that yours is a case in which the deportation consequence is “truly clear,” triggering the duty to give correct legal advice on deportability?  Even if you determine that yours is not a case in which the deportation consequence is truly clear, I expect that once you advise your clients that there is a risk of deportation, they will ask, “Now what?  You are my lawyer, tell me what to do.”  So, a criminal defense attorney who is unfamiliar with immigration law has her work cut out for her if she plans to undertake the analysis of whether her client’s criminal matter makes him deportable.

Rather than dabble in immigration law from time-to-time as the issues arise and risk a board complaint or worse yet, getting your client deported, the better approach, as advocated by Justice Alito in his concurring opinion, is to advise the client to consult with an immigration attorney on the deportability issue.  Experienced immigration lawyers argue the issue of whether various criminal matters justify deportation regularly before the Immigration Court, Board of Immigration Appeals, Eighth Circuit Court, and the U.S. Supreme Court.  In fact, Justice Alito’s concurring opinion may be a good starting point for even immigration attorneys who are trying to determine whether a conviction makes a person deportable as it points out many of the complexities of making such a determination.

To further complicate matters, criminal convictions not only effect noncitizens like Padilla who are permanent residents living in the United States, but they can effect noncitizens seeking to return to the U.S. after visiting abroad or noncitizens who are temporarily in the U.S. who get convicted, and then try to return in the future (e.g., those on student visas, work visas, etc.).  And if that wasn’t confusing enough, there are at least two different sections of the Immigration and Nationality Act (INA) that need to be consulted depending on whether the noncitizen is in the U.S. or seeking admission to the U.S.

The grounds of “inadmissibility” that apply to those seeking to enter the U.S. can be found at INA Sec. 212.  The grounds of “deportability” for those already in the U.S. are at INA Sec. 237.  In some instances, a noncitizen may be subject to both sections of the INA.

Whether a person is subject to INA 212 or INA 237 is not as obvious a determination as you may think.  Not only does INA 212 apply to those who are seeking admission at the border or airport, it also applies to those who are already in the U.S. but who entered without inspection (illegally), as well as, those who are already in the U.S. legally but are now seeking adjustment of status to lawful permanent residence (green card).  So, even though this is not the “deportability” section of the INA, the end result can be deportation. 

Convictions that commonly make a person inadmissible under  INA 212 include, but are not limited to: crimes of moral turpitude (CMT), controlled substance violations, multiple convictions, drug trafficking, and prostitution.  You must consult the statute for the entire list of crimes that make a person inadmissible.

Convictions that commonly make a person deportable under INA 237 include, but are not limited to: crimes of moral turpitude, multiple crimes, aggravated felony, controlled substance violation, drug abuser or addict, firearms offense, and domestic violence.  You must consult the statute for the entire list of crimes that make a person deportable.

As you can see, not only are there overlapping convictions in the two statutes, the terms can be vague.  For example, what constitutes an aggravated felony?  What falls into the category of controlled substance?  What is a crime of moral turpitude?  Determining whether you only need to advise a noncitizen client that pending criminal charges may carry adverse immigration consequences or whether the deportation consequence is “truly clear,” is not an easy undertaking. 

Once you determine that your client is a noncitizen, the simplest thing to do is consult with an immigration attorney on the matter.  You can either refer your client to the immigration attorney for this opinion, or your firm may retain the attorney for the opinion.  I have worked with attorneys that handle the situation both ways and the end result is the same.

Many anticipate that Padilla will result in thousands of cases being filed in criminal courts and immigration courts across the country seeking reopening and vacating of convictions.  Whether Padilla is retroactive and allows such actions remains to be seen.

Even if the analysis results in a finding that the conviction will not result in deportability, it may nevertheless result in a denial of citizenship should your client seek to naturalize in the future.  This is an entirely different discussion that exceeds the scope of this writing.

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