In the case of Padilla v. Kentucky, the U.S. Supreme Court held in a 7-2 decision that “[i[t is quintessentially the duty of counsel to provide his/her client with the available advice about an issue like deportation” and the failure to do so satisfies the first prong of the Strickland analysis regarding ineffective assistance of counsel. In other words a criminal defense attorney Phoenix must notify their client regarding issues of whether or not a plea carries immigration consequences. The court held that “counsel must inform their client whether his or her plea carries a risk of deportation.”
Justice Stevens even provides a practice tip and encourages criminal defense attorneys in Phoenix and other lawyers to consider immigration consequences when engaging in plea-bargaining and to do so creatively.
The Padilla decision simply reinforces existing law in states like New Mexico where counsel already has the responsibility to determine if a client is a citizen, determine the immigration consequences of the crime with which the client is charged and inform the client. But in those states that only found ineffective assistance of counsel where there was clearly incorrect advice regarding immigration consequences or though immigration consequences were collateral to the criminal defense attorney Phoenix case and therefore are not worthy of ineffective assistance analysis, this landmark decision in the Padilla case does expand the duties of criminal defense attorneys in Phoenix and nationwide.
The concurrence of Justice Alito even recognizes that “any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the clients determination whether to enter a guilty plea.”
The Supreme Court rejected the argument that immigration consequences are considered “collateral” to the criminal case and therefore not subject to the requirement of effective assistance of counsel and also rejected the notion that only “wrong” advice is ineffective.
What does the Supreme Court’s Decision Mean?
Although the Supreme Court holds that where the immigration consequences are mandatory and clear a criminal defense attorney or other counsel must so inform the client. The only disappointment of the opinion is the language starting that where the immigration law is unclear, a criminal defense attorney can merely advise their client that there is a risk of adverse immigration consequences and tell their client to consult an expert. The issue with this — the client may not have the resources to hire either an immigration lawyer or a criminal defense attorney Phoenix who understands the consequences.
What is clear with the majority opinion’s extensive discussion of professional standards, is that in all cases where the defendant is not an American citizen, counsel has a duty to investigate a clients immigration status as well as the immigration consequences of the particular charges the client may be facing. Only after investigation will the attorney’s advice differ – it may unclear or clear, depending upon the law.
Throughout the country some public defender offices have hired an expert in the field of immigration and criminal law or banded together with offices to have such backup capability. While Justice Alito’s concurrence goes to great lengths to point out the complexity of immigration law, in fact immigration law is similar to any new area criminal defense attorneys Phoenix face, such as DNA evidence – they either learn the field or hire an individual who knows it in order to represent the client.
The challenge to criminal defense attorneys in Phoenix is to look at each client holistically and see what impact there may be from the criminal charges including immigration as well as other consequences.
About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a Phoenix Criminal Defense Attorney, visit our site.