For non-citizens, criminal charges and convictions may carry severe consequences, up to and including removal from the United States. Therefore, it is very important that such clients consult with criminal defense attorneys who are familiar enough with immigration law to recognize when to seek the advice of a competent immigration attorney. Excellent criminal defense advice may result in dire and unforeseen immigration consequences.
The stakes are high for criminal defense attorneys, as well. The U.S. Supreme Court’s decision in Padilla v. Kentucky made it clear that criminal defense attorneys must be familiar with the immigration consequences that their non-citizen clients could face as a result of a conviction. Although it would be impossible to fully discuss the case here, in general, a Sixth Amendment ineffective assistance from counsel claim may result if an attorney fails to properly advise a defendant on whether his or her plea carries a risk of deportation. The best practice is to discuss possible consequences with the client and negotiate a plea that will minimize immigration risks.
Although, in theory, an attorney should always attempt to minimize immigration consequences to his or her client, such consequences become VERY important when his or her client (1) is a lawful permanent resident (LPR), (2) has already had a petition filed to become an LPR (3) is residing in the U.S. on a visa, or (4) has received, or is applying for, asylum or refugee status. In most situations, it is very difficult to provide an effective Padilla advisory without consulting an immigration attorney, because immigration consequences depend on many factors and are not easily ascertained.
Additionally, an “over-advisal” might be just as damaging and ineffective as an “under-advisal.” For example, a shoplifting conviction may lead to removal from the U.S. if (1) it was done with the intent to permanently deprive, (2) it is committed within 5 years of admission to the U.S., and (3) the potential sentence is 1 year or more. If a defense attorney advises a non-citizen client that a misdemeanor shoplifting conviction will definitely result in deportation (when it doesn’t), the client might believe that he or she has no choice but to go to trial. In such a case, the client might be convicted of a deportable offense.
Although criminal defense attorneys should be aware of the Supreme Court’s ruling in Padilla, it is also the responsibility of non-citizen criminal defense clients to ask the proper questions and make their defense attorneys aware of their immigration status. Working together, clients, defense attorneys, and immigration attorneys can ensure the best possible legal advice for non-citizens facing criminal charges.
The full Supreme Court opinion may be found here: http://www.supremecourt.gov/opinions/09pdf/08-651.pdf