Crime and Punishment in American Immigration

As seen in the February issue of the Cincinnati Bar Association Report.

In 1882, the same year that Robert Ford killed the famous outlaw Jesse James, the U.S. Congress passed a new Immigration Act that imposed a 50 cent tax upon immigrants to fund the cost of regulating immigration and gave federal authorities the power to deny entry to "convicts...lunatics and persons likely to become public charges."

On March 31, 2010, the United States Supreme Court issued its decision in the case of Padilla v. Kentucky, 599 U.S. ___ (2010), 130 S. Ct. 1473. Mr. Padilla, a lawful permanent resident of the United States for more than 40 years, had served in Vietnam with honor. However, he was charged with transporting marijuana in Kentucky. He claimed that his lawyer had told him that "he did not have to worry about immigration status since he had been in the country so long." 253 S.W. 3d 482, 483 (Ky. 2008.) Padilla claimed that he would not have pleaded guilty to the charges if he knew that such plea would make him removable (deportable).

The Court held that under the Sixth Amendment's effective-assistance-of-counsel guarantee, lawyers must provide affirmative, competent advice to noncitizen clients regarding the potential immigration consequences of a guilty plea. If a lawyer does not render accurate advice, noncitizens may be entitled to relief if they can show that the ineffective assistance of counsel was prejudicial.

The Padilla v. Kentucky decision is noteworthy in several respects. First, it makes it clear that the Sixth Amendment requires lawyers to advise their clients to render affirmative, correct advice as to the potential immigration consequences of a guilty plea. Second, the court noted that:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was...