Amrita Lamba is one of Professor Birdsong’s favorite students.  She graduated from Barry Law with her J.D. degree last Saturday.  Before her graduation she did a directed research project under my supervision.   Her research resulted in a  well written and informative article about the Padilla v. Kentucky case recently decided by the U.S. Supreme Court and how it may change the immigrant’s world. Ms. Lamba has given me permission to share her article with the world.

Read it and learn.


How Criminal Convictions Are Impacting Immigration Cases and Ineffective Assistance of Counsel Claims

 by: Amrita K. Lamba



I.      Introduction


There are over 12.8 million legal permanent residents in the United States.[1]  Their backgrounds, cultures, physical characteristics, and country of origins may all vary, but they come to American to establish their home and roots in the community.[2]  They contribute to the general economy “…as members of the workforce or as small business owners, raise families, and join the military…”[3]  Just like citizens of the United States, sometimes immigrants can “…run afoul of the law.”[4]  However, when they face the criminal justice system they are subject to more disadvantages than citizens because of cultural differences and language barriers.[5]  This “problem [has] compounded…under current immigration law[s because], convictions of many types of relatively minor crimes result in mandatory detention and deportation.”[6]

The following sections delve deeper into issues immigrants face when dealing with cases that range across both areas of law – criminal and immigration.  The biggest area of concern is what duty does an attorney have to inform their clients of the impact of criminal convictions on their immigration status.  Additionally, if there is a duty, to what extent does it apply?

a.      The Nexus Between Criminal and Immigration Laws


The backdrop of Federal Immigration laws in the United States has changed in significant ways over the past two decades.[7]  Previously “…there was only a narrow class of deportable offenses and judges [were able to wield] broad discretion…to prevent deportation.”[8]  However, the Immigration Act of 1990 incorporated and adopted many new provisions into the then existing immigration laws.[9] 

Since 1996, close to 1.6 million families have been torn apart and over 670,000 noncitizens have had to leave the US because of their criminal convictions.[10]  “…[I]n 2007 alone, the Department of Homeland Security removed 99,9000 criminal noncitizens from the United States.”[11]  The issue of defense lawyers not advising their clients, or advising their clients with the wrong information is a constant issue present in many of these cases.  A majority of immigrants that are deported are removed because they have been convicted of crimes under immigration statutes or drug offenses.[12]

These harsh results are occurring because the new legislation has dramatically changed the consequences of criminal convictions on an immigrant’s residency status.[13]  Specifically, a “broad array of state and federal felonies [have become] the basis for mandatory deportation.”[14]  After expansion of the definition of aggravated felonies and limiting the methods of relief available to immigrants, deportation is now a predestined result for immigrants convicted of crimes.[15]

In contrast, before these radical changes took place, judges had the option to exercise a procedure known as the Judicial Recommendation Against Deportation (JRAD).[16]  The JRAD practice gave sentencing judges the authority to prevent an immigrant’s deportation by allowing them to exclude certain offenses from computation in their deportability.[17]

In 1996 the Antiterrorism and Effective Death Penalty Act (AEDPA), and the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), restricted the judicial review model that has been in place.[18]  These two acts repealed the former section of the Immigration and Naturalization Act under statute 8 U.S.C. §1182(c).[19]  This section allowed noncitizens to be eligible for discretionary relief from deportation if convicted of aggravated felonies.[20]  Furthermore, the threshold of crimes that would make immigrants qualify for deportation was lowered and other new crimes were added.[21]  “…[F]or example, thefts, burglaries, and gambling offenses, [all] punishable by one year’s imprisonment, became aggravated felonies.”[22]  The amendments also applied retroactively making immigrants deportable for crimes they committed when those crimes were not considered aggravated felonies.[23]

The amendments further enlarged deportable crimes to include many which are nonviolent in nature.[24]  Some of these deportable crimes include receipt of stolen property, perjury, tax evasion, or fraud of more than $10,000.[25]  Since the statutes now cover a wider range of crimes, the consequences for immigrants are even greater.  This is especially so since the “…reforms have eliminated virtually all discretion…lawful permanent residents who are convicted of aggravated felonies and sentenced to at least five years’ imprisonment…have no possible relief from deportation.”[26]  The only hope an immigrant, who has been convicted of these crimes has is to show the likelihood of torture or a well-founded fear of persecution if they were to return to their home countries.[27]

b.      The Historical Reaction of Courts


After seeing how severely immigration laws can impact an immigrant’s life if convicted of a crime, the question becomes, are lawyers aware of this and are they advising their clients accordingly?  State and Federal courts alike have grasped with this question with strong arguments for each side.  “…[C]ourts have traditionally treated immigration consequences as entirely separate from criminal convictions…”[28]  Being eligible for deportation was considered a civil remedy by the courts, and not as a criminal penalty because it was contingent on further administrative proceedings.[29]  Accordingly, there was no need for criminal defense attorneys or judges to advise defendants who pled guilty that there was a chance they might be deported.[30]  This traditional viewpoint by courts has changed after the Immigration Act of 1990.

The first question is whether a criminal client has a right under the Sixth Amendment to be advised of the immigrant consequences of their convictions.  Courts are split 27-3 on whether or not giving advice to a client about the immigration consequences of their criminal convictions affects their Sixth Amendment right.[31]  Seventeen state courts and ten federal courts hold that criminal defense lawyers have no obligation to advise their clients about the impact criminal convictions may have on their immigration status.[32]  Judges in these cases are only required to advise defendants of the direct consequences of their convictions.[33]  An immigrant’s status is considered a collateral consequence, which they need not advise.[34] 

In contrast, other courts have decided that effective assistance of counsel requires attorneys to make disclosures about the immigration effects of their convictions.  These courts condition disclosure on the client’s specific situation.[35]  Three courts have held, “…to render effective assistance of counsel, criminal defense lawyers must advise at least some noncitizen clients of the immigration consequences of a conviction.”[36]  These jurisdictions preserve an attorney’s duty to advise because of the seriousness of the consequence.  For example, in Williams v. State,[37]the court held that the label ‘collateral consequence’ is irrelevant in regards to deportation, because of the seriousness of the consequence.  The court further held that defense attorneys must advise noncitizen defendants of deportation consequences of their guilty pleas.[38]  However, for the most part, a majority of courts have traditionally held that being eligible for deportation is a collateral consequence and requires no obligation of disclosure.[39] 

The second question is whether a criminal client’s Sixth Amendment right is violated when they are given wrong information by their attorneys regarding immigration consequences.  In deciding this question, courts are split 17-2 as to whether or not misadvice constitutes a violation of the Sixth Amendment.[40]  Seventeen different jurisdictions consider misadvice as ineffective assistance of counsel.[41]  On the other hand, two jurisdictions have held that misadvice does not violate the Sixth Amendment because the attorneys were under no duty to inform their clients of the immigration consequences.[42]  These courts further held that misadvice, as a matter of law, can not invalidate a guilty plea.[43]

c.       The Current State of Affairs

“The circuit splits and issues have been percolating for decades…confirming that the issues will not go away on their own.”[44]  Throughout the legal realm various associations and a minority of states have been trying to grapple with the issue.  Specifically, the American Bar Association (ABA) has added guidelines to its model standards, emphasizing the need for attorneys to advise clients of the immigration consequences of entering a guilty plea.[45]  Bar magazines continuously publish articles stressing for attorneys to warn immigrants of the deportation consequences of their criminal convictions.[46]  Also, twenty-three states, plus the District of Columbia, by statute or rule require judges to warn noncitizens of the immigration consequences of guilty pleas.[47]

The turning point in the blurry line of an attorney’s duty to inform came in 2010, with the Supreme Court decision of Padilla v. Kentucky.[48]  In Padilla the Court’s holding made clear the duty of criminal defense attorneys in advising their immigrant clients.  Specifically, the court held:

“[i]t is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel.’  To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.”[49]

The full impact of this holding has yet to be seen.  However, its affects are already clear.  Criminal defense attorneys must now take steps to advise their noncitizen clients on the immigration effects of their criminal cases.  Immigration consequences are no longer a matter of collateral or non-collateral consequence; there is a duty to inform.  The evolution of the Padilla case will be discussed in further detail in later sections.

II.      Real Immigrants and Real Consequences


“…[S]ince the 1996 amendment[s] to the Immigration and Nationality Act, which expanded the scope of deportable offenses, the number of persons deported from the United States for criminal convictions has greatly increased.”[50]  The total number of deported immigrants rose from 72,482 to 103,163 each year from 1998 through 2006.[51]  This was after the new immigration laws were put into effect.  The expansion of immigration laws has created consequences that are more severe, immediate, and certain.[52]

Detention and deportation can rip families apart and come between those with settled roots in the United States.[53]  Therefore, for most immigrants the most important aspect of accepting a certain criminal conviction or plea bargain is the immigration consequence thereof.[54]  This is the reason why there is a strong necessity for criminal defense attorneys to understand the impact of a criminal case on a client’s immigration case. 

The following section narrates the stories of different immigrants who have suffered severe consequences by accepting plea bargains that made them eligible for automatic deportation – based on the advisement of their attorneys.  There are also immigrants who have avoided deportation by effective plea-bargaining by their informed attorneys.

a.      Mr. Martin Medel, New Mexico

Mr. Martin Medel is an immigrant from New Mexico.[55]  He came to the United States in 1990 as a legal permanent resident.[56]  Mr. Medel resided in Georgia with his wife and three children, all whom are United States citizens.[57]  He started his own subcontracting business, which was very successful.[58]  His business partner describes him as “…a model husband, father, and businessman who represents the ideal individual that we, as American citizens, should embrace and expect in our country.”[59]

In 1999, Mr. Medel was arrested while driving, after “police found a dollar bill coated with trace amounts of cocaine.”[60]  At trial he was charged with violating the Georgia Controlled Substances Act for possessing less than one gram of cocaine.[61]  In exchange for a guilty plea, he received no jail time and probation.[62]  He also had no prior criminal record.[63]  After the successful completion of his probation he would not have a criminal record or an adjudication of guilt under state law.[64]  His acceptance of the guilty plea was under the advice of his counsel.[65]              

In February of 2009, U.S. Immigration and Customs Enforcement (ICE) detained Mr. Medel upon his return from a vacation in Mexico.[66]  ICE officials charged “…him as being removable under 8 U.S.C. § 1227(a)(2)(B) for having committed a controlled substance offense…”[67]  He was detained, and as of June 2009, continues to be held in a Texas detention facility.[68]  Mr. Medel asserts, “…he would not have pleaded guilty had his lawyer accurately informed him that doing so could lead to deportation.”[69]  Meanwhile, his detention impacts his family, life, and business.[70] 

b.      Ms. Maria Taganeca, Fiji

Ms. Maria Teaganeca came to the United States with her family when she was seven years old.[71]  She is a native of Fiji and entered the United States as a legal permanent resident.[72]  Ms. Taganeca and her family have been residing lawfully in the United States since 1987.[73]  She resides in Missouri and has strong connections with her family.[74]  She attended high school, community college, coached the children’s swimming team, and was involved in the community.[75]  She was also the primary caregiver for her parents and relatives.[76]  Her mother suffered from diabetes and renal failure and was bound to a wheelchair.[77]  Her father had chronic illnesses; and her uncle had throat cancer.[78]

Ms. Taganeca was arrested in 2006 after she was riding with some friends who were in possession of drugs.[79]  She was charged under Missouri law with possession of a controlled substance with intent to deliver.[80]  She was charged even though she had no drugs in her possession.[81]  At trial she pleaded guilty, under the advice of her attorney.[82]  However her attorney never informed her that pleading guilty would maker her deportable.[83]  This is because the “offense to which she pleaded guilty qualified as a ‘drug trafficking crime,’ and therefore an aggravated felony, pursuant to 8 U.S.C. § 1101(a)(43)(B).[84]  Furthermore, because her crime was an aggravated felony, she was not allowed cancellation of removal.[85]

Ms. Taganeca was faced with the certain notion that she would be deported.[86]  However, she filed for post-conviction relief on the grounds of ineffective assistance of counsel.[87]  She claimed her plea was inadequate because her attorney did not advise her that pleading guilty would result in her deportation.[88]  She was granted relief by the court on those grounds.[89]  The court allowed her to plead guilty to simple possession instead of her previous offense.[90]  While Ms. Taganeca was able to avoid deportation, she was still held in detention for many months where she was unable to care for her family members who are chronically ill.[91] 

c.       Mr. Ney Medina, Dominican Republic

In 1990, at the age of five, Mr. Ney Medina came to the United States.[92]  He has lived and attended school here since his immigration.[93]  The United States is where he considers his home.[94]  Mr. Medina takes care of his three-year-old daughter, who is a United States citizen.[95]

 In 2008 Mr. Medina was charged with two cases.[96]  His cousin and his cousin’s friend filed these cases.[97]  In the first case he was charged with assault, menacing, and harassment.[98]  In the second case he was charged with petit larceny and criminal possession of stolen property.[99]  The stolen property in this case is a cell phone.[100] 

Mr. Medina’s attorneys were worried about the impact of these crimes on his immigration status.[101]  The initial plea he was offered would have required him to plead guilty to a Class B misdemeanor in each case.[102]  This would have made him eligible for deportation by pleading guilty to two crimes involving moral turpitude arising out of a single scheme of criminal misconduct.[103] Even though his initial plea bargain was for relatively low sentences, he would have been deportable under immigration law.[104]

By the end of the case, Mr. Medina’s attorneys negotiated an agreement with the prosecutor whereby he pleaded guilty to more serious counts that were not originally charged.[105]  Instead, he pleaded guilty to possession of a weapon in the fourth degree by a non-U.S. citizen (wire hanger) and disorderly conduct.[106]  Both of these crimes are not considered “crimes of moral turpitude” and therefore would not affect his immigration status.[107]  He was sentenced to 3 days of community service and anger management.[108]  With his attorney’s effectively strategizing around his immigration status he was able to avoid deportation.

As the above cases of Mr. Medel, Ms. Taganeca, and Mr. Medina have shown, the outcome of a noncitizen’s case when they have both criminal and immigration issues can be severe.  Not only, does each immigrant’s case vary, the outcomes are not always consistent.  The one potential remedy is if criminal defense attorneys adequately inform their clients how criminal convictions will impact their immigrant status.  Therefore, counsel and client can work together effectively to avoid harsh consequences or even deportation.

III.       The Evolution of Padilla v. Kentucky

As discussed above, courts have generally been split on an attorney’s duty to inform their clients about the impact of criminal cases on their immigration status.  The recent Supreme Court case of Padilla v. Kentucky, changed this framework.[109]  The Supreme Court in its decision held:

“in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.”[110]

The Padilla case has spent much time in the lower courts of Kentucky before being accepted by the Supreme Court.  This case’s first major decision was rendered in the Court of Appeals of Kentucky in 2006.[111]  The case was then sent to the Supreme Court of Kentucky, who rendered its decision in 2008.[112]  The Supreme Court decision of Padilla was not rendered until March of 2010.[113]  The manner in which Padilla came to fruition and made its way to the Supreme Court will now be discussed in detail.

a.      Mr. Jose Padilla

Mr. Jose Padilla is the main party in the Padilla cases.  He immigrated to the United States from Honduras and has resided in the country for several decades.[114]  He served in the country’s military forces during the Vietnam War and has been a legal permanent resident of the United States for over forty years.[115]

Mr. Padilla was indicted on October 31, 2001 to the following drug charges: possession of marijuana, possession of drug paraphernalia, and trafficking in marijuana (in an amount greater than five pounds).[116]  He was also charged with operating a truck without a weight and distance tax number.[117]  The Commonwealth of Kentucky, however, dismissed this vehicular violation.[118]

On August 22, 2002, Mr. Padilla plead guilty to all three of the drug charges.[119]  Pursuant to his plea agreement, he was sentenced to twelve months for each of the two possession charges and ten years for the trafficking charges – to run in concurrent terms.[120]  The first years of his sentence would be served in prison and the second five years would be probated.[121]

b.      Court of Appeals of Kentucky

Mr. Padilla’s ineffective assistance of counsel complaint was filed pro se on August 18, 2004, under rule RCr. 11.42, in the Kentucky Court of Appeals.[122]  He requested the Court to vacate his sentence because his attorney failed to adequately investigate the consequences of a conviction on his alien status.[123]  Furthermore Mr. Padilla,

“…contented that his trial attorney failed to ‘investigate the possible immigration consequences’ involved in his plea of guilty; that is attorney affirmatively advised him that ‘he did not have to worry about immigration status since he had been in the country so long;’ and that his attorney’s advice was inaccurate.”[124] 

As a result of his attorney’s actions, Mr. Padilla claimed he “suffered unreasonable prejudice and consequences by the mistaken advice.”[125]  The Court denied his motion holding,

“…[Mr.] Padilla’s counsel does not make a deportation decision, and neither does this Court.  This record indicates that Padilla was aware of the possibility that he could be deported.  [Mr.] Padilla cannot show ineffective assistance of counsel merely because of a statement of opinion on whether the Immigration and Naturalization Service would choose to deport [Mr.] Padilla given his length of time in the United States.”[126]

Mr. Padilla immediately appealed the Court’s holding.[127]  His appeal remained pending until a decision was made by the Supreme Court of Kentucky in Commonwealth v. Fuartado.[128]  In Fuartado the Court had to decide whether a defendant was entitled to post-conviction relief if their counsel failed to investigate or advise on possible deportation consequences.[129]  The Supreme Court of Kentucky in Fuartado held that a defendant was not entitled to post-conviction relief.[130]

Following the Fuartado decision, the Supreme Court of Kentucky would have been able to render a decision in favor of the Commonwealth.[131]  However, Mr. Padilla’s claim was different from that the one brought in Fuartado.  He not only claimed lack of advice from his attorney, but also incorrect advice concerning possible deportation.[132]  The misadvice came after he directly questioned his attorney about the possible immigration consequences.[133]  Therefore, the Court vacated the appeal stating Mr. Padilla was entitled to an evidentiary hearing on his motion.[134]  The purpose of the hearing was to determine if he suffered prejudice by his counsel’s statements, and if so, whether he was entitled to post-conviction relief.[135]

c.       Supreme Court of Kentucky

After vacating the Court of Appeals case, the Commonwealth of Kentucky filed for discretionary review regarding Mr. Padilla’s ineffective assistance of counsel claim.[136]  The Supreme Court of Kentucky granted review and in its judgment denied post-conviction relief.[137] 

The major premise of the Commonwealth’s argument rested on the fact that deportation is a collateral consequence following a criminal conviction.[138]  The Commonwealth argued it is collateral because it cannot be distinguished “…from other consequences such as losing the right to vote or to possess firearms.”[139]  Therefore, a defendant’s constitutional rights are not infringed upon by a lack of understanding or misadvice in regards to the consequences of their convictions.[140]

In return Mr. Padilla’s argument emphasized the fact that while courts look to the collateral consequence versus non-collateral consequences analysis, there is “…generally an exception for erroneous advice on collateral consequences as opposed to no advice.”[141]  Therefore, he is entitled to relief on the basis of being induced to accept a plea bargain that was recommended by his attorney’s mistaken advice.[142]  Using Strickland v. Washington,[143] Mr. Padilla claimed he could not be bound to this plea bargain and eligible for post-conviction relief.[144] 

In its analysis, the Supreme Court of Kentucky found collateral consequences to be outside the scope of the Sixth Amendment.[145]  The Court stated that an attorney’s failure to advise, or an act of misadvising a client, provides no basis of relief.[146]  Moreover, attorneys are under no requirement to address the consequences to their clients.[147]  As a result, the failure to inform or advise a client cannot lead to a claim of ineffective assistance of counsel.[148]  In its final judgment, the Court held that the Sixth Amendment’s right of effective assistance of counsel does not protect criminal defendants in regards to misadvice regarding deportation, because it is a collateral consequence.[149] 

d.      United States Supreme Court

The United States Supreme Court differed with the holding of the Supreme Court of Kentucky.  In fact, the Supreme Court found that competent counsel would have advised Mr. Padilla that his drug conviction would automatically make him eligible for deportation.[150]  The Court justified this conclusion based on how greatly federal immigration laws have changed over recent years.[151]  While there used to be a narrow class of crimes, the new immigration laws have expanded the classes of crimes that make a nonciztien automatically deportable.[152]  “…[T]he drastic measure of deportation or removal…is now virtually inevitable for a vast number of noncitizens convicted of crimes…” because of these changes.[153]    

The Supreme Court was unable to classify deportation as a direct or collateral consequence because of its unique nature and the fact that it is a clear consequence of a criminal conviction.[154]  Nevertheless, the Court has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance.’”[155]

In preempting arguments of how this decision will open the floodgates for ineffective assistance of counsel claims—the Court feels the Padilla decision will not have this effect.[156]  The Padilla decision is not expected to impact convictions that have already been rendered because established professional norms have made attorneys responsible for advising client’s about the possible deportation consequences.[157]  Furthermore, defendants “…who collaterally attack their guilty pleas lose the benefit of the bargain as a result of the plea.”[158]  As such, defendants wishing to file claims attacking their plea bargains will likely weigh the consequences beforehand.  Defendants are unlikely to bring groundless claims because the result may be a less favorable outcome.[159]

The Supreme Court in final, held there is a responsibility under the Constitution to ensure no criminal defendant, whether citizen or not, is left to the mercies of incompetent counsel.[160]  “…[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”[161]  To satisfy their responsibility, attorneys must inform clients whether their plea carries a risk of deportation.[162]  As in this case, Mr. Padilla’s counsel could have determined very easily whether his plea bargain carried the risk of deportation by simply reading the statute.[163] 

The Court limited the duty of counsel in advising clients about the risk of deportation only to cases where the law is straightforward.[164]  Moreover, counsel must accurately advise their client.[165]  As the Supreme Court stated, attorneys “…need [not] do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”[166]    

e.       The Strickland v. Washington Test

When a convicted defendant asserts a complaint of ineffectiveness of counsel’s assistance, the defendant must show that their attorney’s representation of the case “…fell below an objective standard of reasonableness.”[167]  The Sixth Amendment only refers to ‘counsel’ and does not specify what exact requirements constitute effective assistance.[168]  Therefore, “[t]he proper measure of attorney performance remains…reasonableness under prevailing professional norms.”[169]  The goal of the Sixth Amendment is to provide criminal defendants safeguards of a fair trial, rather than raise the standard and quality of legal representation.[170] 

The Supreme Court in Strickland v. Washington outlined the above standard.[171]  This is the standard under which ineffective assistance of counsel claims should be decided.[172]  Under Strickland courts must apply a two-prong test in cases where there are ineffective assistance of counsel claims.[173]  The two prongs of this test are:  1) whether counsel’s representation ‘fell below an objective standard of reasonableness’ and; 2) whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.[174]

The Supreme Court in Padilla held the Strickland standard applied to the claim asserted.[175]  Moreover, the Court stated that applying Strickland would prevent a flood of cases following the holding in Padilla.[176]  As, “…surmounting Strickland’s high bar is never an easy task.”[177]  The Court also stated that lower courts are familiar with applying the Strickland test to ineffective assistance of counsel claims.[178]  Therefore they are able to separate baseless claims from those with real merit.[179]  For these reasons the Supreme Court applied Strickland to Padilla.

IV.       Aftermath of Padilla v. Kentucky

a.      The Courts since Padilla

Since the Supreme Court rendered the Padilla decision, it has been cited and followed by district courts in opinions concerning ineffective assistance of counsel claims. 

One major issue among courts is whether Padilla will apply retroactively.  To date, at least three courts – one state court and two federal courts – have decided on this factor.  One state court[180] and one federal court[181] have stated that Padilla does not apply retroactively for different reasons.  Another federal court decided the Supreme Court intended for Padilla to apply retroactively.[182]

The second issue is whether noncitizens are realizing any actual relief from this holding.  While courts are following Padilla’s holding, these cases are being analyzed under Strickland, as was done by the Supreme Court.  Nevertheless, many defendants are unable to overcome both parts of the Strickland test.[183]  In particular, defendants have a hard time overcoming the burden of the second prong.  This prong requires criminal defendants to show that but for the ineffectiveness of counsel, the outcome of the case would have been different.[184]  Since the majority of defendants are unable to overcome this burden, their claims are still being denied. 

b.      Cases Decided Since Padilla 

In Hernandez v. Florida, the Court held Florida’s existing warnings regarding deportation were constitutionally deficient.[185]  The Court further held that in post-conviction cases, Padilla should not be applied retroactively.[186] 

The Court in U.S. v. Diaz-Palmerin held that the decision in Padilla did not create a new constitutional law.[187]  This Court stated that the Supreme Court decision based its analysis of effective assistance of counsel on the ‘prevailing professional norms,’ at the time.[188]  Therefore, because a new rule of constitutional law was not created, there was no need to ascertain whether Padilla applied retroactively.[189]

The Courts in Zapata-Banda v. U.S., decided to the contrary.[190]  This Court ruled that whether Padilla applied retroactively was a question of first impression in its jurisdiction.[191]  In its final holding the Zapata-Banda Court held that Padilla did in fact apply retroactively.[192]

In Wassouf v. United States, the petitioner-defendant was unable to meet both prongs of the Strickland test; for that reason the court denied his ineffective assistance of counsel claim.[193]  In this case the attorney did not advise the defendant that his conviction would impact his immigration status.[194]  However, because the defendant was unable to show prejudice from his counsel’s error his claim was denied.[195]

The Fourth District Court of Appeals in Florida distinguished the case of Flores v. Florida from Padilla.[196]  The defendant during this case was informed of the possible deportation consequences that may result during his plea colloquy.[197]  When questioned by the judge, the defendant, at this time, said he understood what this meant.[198]  However, later during his claim the defendant stated he did not realize this warning applied to his personal case.[199]  His claim rested on the fact that he relied on the advice that was given to him by his counsel.[200]  Nevertheless, because the defendant was advised by the judge and unable to show prejudice under Strickland, the Court denied his claim.[201]    

V.      Conclusion

Following the progression of Padilla through the courts, this now begs the question: what real effect does this holding have?  Are the duties outlined by the Supreme Court in Padilla adding unnecessarily to an attorney’s role in advising his client?  Or, is the Court simply stating standards of representation attorneys should already be in engaged in.  As the Supreme Court reasoned in its decision:

 “…it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available.  Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of ‘the advantages and disadvantages of a plea agreement…Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.  It is quintessentially the duty of counsel to provide her client with available advice about an issues like deportation…”[202]

By examination of cases involving criminal defendants with immigration issues, it is easily determinable, that the Supreme Court is emphasizing standards criminal defense attorneys should already be engaging in.

As in Mr. Padilla’s case, if his counsel had even attempted to investigate how his plea bargain would impact his deportation – he would have readily found the answer.[203]  Accepting the plea bargain would make Mr. Padilla automatically eligible for deportation.[204]  For this reason, an attorney’s main area of practice cannot dictate to what extent they will represent their clients.  This type of ‘zealous representation’ should not be the norm for practicing attorneys.

Additionally, the Supreme Court is not adding unnecessary burdens on attorneys in representation of noncitizens.  The holding is properly limited to counsel advising their clients on laws that have the potential to negatively impact a guilty-pleading defendant.[205]  These laws are only those that are clear and explicit.[206]

It is no question that the areas of criminal and immigration law are vastly different and vastly complex.  However, as the above analysis has shown, following the amendments in criminal law, it is at least mandatory that criminal defense attorneys have a working knowledge of the potential impact of criminal convictions.  This factor is extremely important if clients are noncitizens.  The consequences following criminal convictions in the immigration realm are no longer ‘collateral’ in nature.  In fact, as cases have shown, they are more severe than actual jail sentences.  Furthermore, defendants can no longer rely upon discretionary relief.  Deportation is but a mere guarantee.  Again, the severity of the consequence should in itself show the necessity for disclosure.

Some may claim that criminal and immigration courts are already inundated with cases, and Padilla will only add to the overcrowded courtrooms and dockets.[207]  Others will claim, that Padilla is opening the floodgates for motions of ineffectiveness of counsel from criminal defendants.  However, neither of these results is very likely.

First, while courtrooms and dockets may already be overcrowded, the holding in Padilla will only work to make criminal defense attorneys more prepared in their representation of criminal clients.[208]  Attorneys will now automatically look for possible immigration issues in their noncitizen’s criminal case.  A client’s immigration status is easily determinable and attorneys need only research laws that are clearly stated.

Second, Padilla will not open the floodgates for claims of ineffectiveness of counsel.  This is ensured by the fact that defendants still have the task of overcoming the two-prong Strickland test.  As the above cases demonstrate, many claims of ineffectiveness of counsel are still being denied.  It is only defendants who truly have been impacted by their counsel’s misinformation or lack of, that will gain the benefit of the holding.  If a defendant does not show actual prejudice stemming from the advice, their claim will most likely be denied.  Knowing, that an ineffective assistance of counsel claim must pass muster under the Strickland test, will prevent such an influx.  Criminal defendants who actually suffer prejudice will be the only ones to realize the benefits of Padilla

In conclusion, the impact criminal convictions can have on the families and livelihoods of noncitizens demands no less than accurate and informed information from criminal defense attorneys.  The holding in Padillacreates a narrow scope of what is required to provide effective assistance.  It does not unnecessarily burden an attorney’s pre-existing duties of representation.  As counsel of a noncitizen client, there is no duty more important than advising a client criminal that his or her conviction will make them eligible for deportation. 

VI.      Table of Authorities

a.      Cases

Commonwealth v. Fuartado,

170 S.W.3d 384 (Ky. 2005)………………………………………………………………16


Commonwealth v. Padilla,

253 S.W.3d 482 (Ky. 2008).………………………………………………….14, 15, 17, 18

Flores v. Florida,

No. 4D08-3866, 2010 Fla. App. LEXIS 10335, at *6 (Fourth Dist. Ct. App. July 14, 2010).…………….……………………………………………………………….………24

Hernandez v. Florida,

No. 3D10-2462, 2011 Fla. App. LEXIS 4787, at *1 (Third Dist. Ct. of App. Apr. 6, 2011)…………………………………………………………………………………22, 23

Padilla v. Commonwealth,

No. 2004-CA-001981-MR, 2006 Ky. App. LEXIS 98, at *1 (Ky. Ct. App. Mar. 31, 2006)…………………………………………………………………………………..14 – 17

Padilla v. Kentucky,

599 U.S. ___, 130 S. Ct. 1473, 7 (2010)…………..…….………3, 4, 8, 14, 15, 18 – 22, 25


People v. Pozo,

746 P.2d 523, 527 (Colo. 1987)……………………………………………………………6


State v. Paraedez,

101 P.3d 799, 805 (N.M. 2004)………………………………………………………..….6  


Strickland v. Washington,

466 U.S. 668 (1984)……………………………………………..………………18, 20 – 22

U.S. v. Diaz-Palmerin,

No. 08-cr-777-3, 2011 U.S. Dist. LEXIS 37151, at *1 (N.D. Ill., E.D. Apr. 5, 2011)…………………………………………………………………………………………………………….22, 23


Wassouf v. United States,

No. 11-cv-51-SM, 2011 U.S. Dist. LEXIS 12705, *7, 8 (D.N.H. Feb. 7, 2011)…….23, 24 


Williams v. State,

641 N.E.2d 44, 49 (Ind. Ct. App. 1994)……………………………………………..….6, 7

Zapata-Banda v. U.S.,

No. 09-PO-2487, 2011 U.S. Dist. LEXIS 36739, at *1 (S.D. Tex., Brownsville

Div. Mar. 7, 2011)……………………………………………………………………22, 23

b.      Court Briefs

Brief for Asian American Justice Center, et. al. as Amici Curiae Supporting Petitioner, Padilla v. Kentucky,

599 U.S. ___, 130 S. Ct. 1473 (2010) (No. 08-651), 2009 U.S. S. Ct. Briefs

LEXIS 417, at *9 (June 2, 2009)……………………………………………..……2, 8 – 13

Brief for Criminal and Immigration Law Professors, et. al. as Amici Curiae Supporting Petitioner, Padilla v. Kentucky,

599 U.S. __, 130 S. Ct. 1473 (2010) (No. 08-651), 2009 U.S. S. Ct. Briefs

LEXIS 1308, at *6 (January 21, 2009)……………………………………………..……3 – 8


c.       Statutes

8 U.S.C. §1182(c)………………………………………………………………………………….4

8 U.S.C. §1227(a)(2)(A)(ii)………………………………………………………………………13

8 U.S.C. §1227(a)(2)(B)………………………………………………………………………….10

8 U.S.C. §1101(a)(43)(B)………………………………………………………………….…….12

d.      Secondary Sources

Equal Justice Works, Will the Supreme Court’s recent decision in Padilla v. Kentucky further impact an already stressed Criminal Defense and Immigration system?,

Apr. 26, 2011,’s-recent-decision-in-padilla-v-kentucky-further-impact-an-already-stressed-criminal-defense-and-immigration-system/……………………………………………25, 26

Manuel D. Vargas, Immigrant Defense Project, A defending Immigrants Partnership Advisory: Duty of Criminal Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky,

A.B.A. Sec. of Litig. and Crim. Just., at 1 (2011)…………………………………14, 17, 18

[1]Brief for Asian American Justice Center, et. al. as Amici Curiae Supporting Petitioner, Padilla v. Kentucky, 599 U.S. ___, 130 S. Ct. 1473 (2010) (No. 08-651), 2009 U.S. S. Ct. Briefs LEXIS 417, at *9 (June 2, 2009) [hereinafter Brief for Asian American Justice].

[2] Id. at 10.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Padilla v. Kentucky, 599 U.S. ___, 130 S. Ct. 1473, 7 (2010).

[8] Id. at 7, 8.

[9]Brief for Criminal and Immigration Law Professors, et. al. as Amici Curiae Supporting Petitioner, Padilla v. Kentucky, 599 U.S. __, 130 S. Ct. 1473 (2010) (No. 08-651), 2009 U.S. S. Ct. Briefs LEXIS 1308, at *6 (January 21, 2009) [hereinafter Brief for Criminal and Immigration Law].

[10] Id. at 15.

[11] Id.

[12] Id.

[13] Id. at 4.

[14] Id.

[15] Id. at 6.

[16] Id.  See also, Padilla, 599 U.S. at 10.

[17] Id.  See also, Padilla, 599 U.S. at 10.

[18] Id. at 7.

[19] Id.  See also, 8 U.S.C. §1182(c).

[20] Id.

[21] Id.

[22] Id.

[23] Id. at 7, 8.

[24] Id. at 8.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 5.

[29] Id.

[30] Id.

[31] Id. at 10.

[32] Id. at 10, 11.

[33] Id.

[34] Id.

[35] Id. at 12.

[36] Id.  See also, People v. Pozo, 746 P.2d 523, 527 (Colo. 1987) (holding that if a lawyer had enough information to believe the client was a noncitizen, effective assistance requires advising about collateral immigration consequences); State v. Paraedez, 101 P.3d 799, 805 (N.M. 2004) (holding that an attorney is required to determine a defendant’s immigration status and specifically advise them about the immigration consequences of pleading guilty). 

[37] Williams v. State, 641 N.E.2d 44, 49 (Ind. Ct. App. 1994).

[38] Id.

[39] Brief for Criminal and Immigration law, supra note 10, at 11.

[40] Id. at 13.

[41] Id.

[42] Id. at 14.

[43] Id.

[44] Id. at 20.

[45] Id. at 16.

[46] Id.

[47] Id. at 17.

[48] Padilla v. Kentucky, 599 U.S. ___, 130 S. Ct. 1473 (2010). 

[49] Id. at 33.

[50] Brief for Asian American, supra note 2, at 10, 11.

[51] Id. at 11.

[52] Id. at 13.

[53] Id. at 11.

[54] Id.

[55] Id. at 28. 

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 28, 29.

[60] Id. at 29.

[61] Id.

[62] Id. at 30.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.  See also, 8 U.S.C. §1227(a)(2)(B)

[68] Id. at 31.

[69] Id.

[70] Id.

[71] Id. at 24. 

[72] Id.

[73] Id.

[74] Id.

[75] Id. at 24, 25.

[76] Id. at 25.

[77] Id. at 24.

[78] Id.

[79] Id. at 25.

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Id.  See also, 8 U.S.C. §1101(a)(43)(B).

[85] Id.

[86] Id. at 26.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] Id. at 27.

[92] Id. at 50.

[93] Id.

[94] Id.

[95] Id.

[96] Id. at 51.

[97] Id.

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.  See also, 8 U.S.C. § 1227(a)(2)(A)(ii). 

[104] Id. at 51.

[105] Id.

[106] Id. at 51, 52.

[107] Id. at 52.

[108] Id.

[109] Padilla v. Kentucky, 599 U.S. ___, 130 S. Ct. 1473 (2010).

[110] Manuel D. Vargas, Immigrant Defense Project, A defending Immigrants Partnership Advisory: Duty of Criminal Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky, A.B.A. Sec. of Litig. and Crim. Just., at 1 (2011) [hereinafter Immigrant Defense Project Article].

[111] Padilla v. Commonwealth, No. 2004-CA-001981-MR, 2006 Ky. App. LEXIS 98, at *1 (Ky. Ct. App. Mar. 31, 2006).

[112] Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008).

[113] Padilla v. Kentucky, 599 U.S. ___, 130 S. Ct. 1473 (2010).

[114] Padilla, 253 S.W.3d at 483.

[115] Padilla, 599 U.S. at 289.

[116] Padilla, 2006 Ky. App. LEXIS 98            at 2.

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Id.

[123] Id. at 2, 3.

[124] Id. at 3.

[125] Id.

[126] Id. at 3, 4.

[127] Id. at 4.

[128] Id.  See also, Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005).

[129] Id. 

[130] Id.

[131] Id.

[132] Id.

[133] Id.

[134] Id. at 9.

[135] Id.

[136] Padilla, 253 S.W.3d at 483.

[137] Immigrant Defense Project Article, supra note 111, at 2.

[138] Padilla, 253 S.W.3d at 484.

[139] Id.

[140] Id.

[141] Id.

[142] Id.

[143] Strickland v. Washington, 466 U.S. 668 (1984). 

[144] Padilla, 253 S.W.3d at 484.

[145] Id. at 485.

[146] Id.

[147] Id.

[148] Id.

[149] Immigrant Defense Project Article, supra note 111, at 2.

[150] Padilla, 599 U.S. at 33.

[151] Id. at 8,9.

[152] Id. at 18.

[153] Id. at 8.

[154] Id. at 17. 

[155] Id.

[156] Id. at 29.

[157] Id.

[158] Id. at 30.

[159] Id.

[160] Id. at 33.

[161] Id. at 31.

[162] Id. at 33.

[163] Id. at 23.

[164] Id. at 23, 24.

[165] Id.

[166] Id. at 23.

[167] Strickland v. Washington, 466 U.S. 668 (1984). 

[168] Id.

[169] Id. at 694.

[170] Id. at 689.

[171] Id. at 668.

[172] Id. at 689.

[173] Id. at 688.

[174] Id. at 688, 674.

[175] Padilla, 599 U.S. at 19.

[176] Id. at 28.

[177] Id.

[178] Id. at 28, 29

[179] Id.

[180] Hernandez v. Florida, No. 3D10-2462, 2011 Fla. App. LEXIS 4787, at *1 (Third Dist. Ct. of App. Apr. 6, 2011).

[181] U.S. v. Diaz-Palmerin, No. 08-cr-777-3, 2011 U.S. Dist. LEXIS 37151, at *1 (N.D. Ill., E.D. Apr. 5, 2011).

[182] Zapata-Banda v. U.S., No. 09-PO-2487, 2011 U.S. Dist. LEXIS 36739, at *1 (S.D. Tex., Brownsville Div. Mar. 7, 2011).

[183] Padilla, 599 U.S. at 28.

[184] Strickland, 466 U.S. at 694.

[185] Hernandez, 2011 Fla. App. LEXIS 4787 at 2.

[186] Id.

[187] U.S v. Diaz-Palmerin, 2011 U.S. Dist. LEXIS 37151 at 11.

[188] Id. at 12.

[189] Id. at 12, 13.

[190] Zapata-Banda v. U.S., 2011 U.S. Dist. LEXIS 36739 at 10.

[191] Id.

[192] Id.

[193] Wassouf v. United States, No. 11-cv-51-SM, 2011 U.S. Dist. LEXIS 12705, *7, 8 (D.N.H. Feb. 7, 2011).

[194] Id. at 7.

[195] Id.

[196] Flores v. Florida, No. 4D08-3866, 2010 Fla. App. LEXIS 10335, at *6 (Fourth Dist. Ct. App. July 14, 2010).

[197] Id.

[198] Id.

[199] Id.

[200] Id.

[201] Id.

[202] Padilla, 599 U.S. at 25, 26.

[203] Equal Justice Works, Will the Supreme Court’s recent decision in Padilla v. Kentucky further impact an already stressed Criminal Defense and Immigration system?, Apr. 26, 2011,’s-recent-decision-in-padilla-v-kentucky-further-impact-an-already-stressed-criminal-defense-and-immigration-system/ [hereinafter Equal Justice Works Article].

[204] Id.

[205] Padilla, 599 U.S. at 23, 24.

[206] Id.

[207] Equal Justice Works Article, supra note 200, at 1.

[208] Id.

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