By Nancy E. Miller, Reeves Miller Zhang & Diza

Committing a crime can get you into a lot of trouble.  But entering a plea in criminal court may get you into even more trouble.  If you don’t know the immigration consequences of the plea you enter, your troubles may just be beginning.  That great deal that kept you out of jail may also get you deported.  That is why the United States Supreme Court has said, in Padilla v. Kentucky, that criminal defense lawyers must either tell their non-citizen clients the immigration consequences of their proposed agreement or instruct them to seek the advice of an immigration attorney.

Mr. Padilla had lived in the United States as a lawful permanent resident for over 40 years.  He had served in the military with honor during the Vietnam War.  When he learned that he faced deportation after pleading guilty to the transportation of a large amount of marijuana, he went back into criminal court to try to withdraw his guilty plea (a process called post-conviction relief).  He said that his criminal defense attorney failed to advise him of the immigration consequences of the plea.  He also said that his defense attorney told him that he “did not have to worry about immigration status since he had been in the country for so long.”  In fact, Padilla’s guilty plea made deportation a certainty.  He said that, if he had known that, he would have taken his case to trial.  When the courts in Kentucky denied his request for post-conviction relief, he asked the Supreme Court to review his case.  The Court agreed to review the case and decided that criminal defense counsel have an obligation to advise their immigrant client that the offense to which he is pleading will result in his removal from this country.

The Court held that the importance of accurate legal advice for noncitizens accused of crimes has never been more important.  It recognized that deportation is sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes.  For that reason, a defendant is entitled to the effective assistance of competent counsel before deciding to enter into a plea agreement.

The test for determining whether representation is competent was set forth in a case called Strickland v. Washington.  The Strickland test has two parts.  The first part examines whether counsel’s representation fell below an objective standard of reasonableness.  The second part looks to whether the result would have been different but for the unprofessional error (in other words, was the defendant prejudiced by the incompetent representation).  To satisfy this section, a noncitizen will have to convince the court that a decision to reject the plea bargain would have been rational under the circumstances.

The Court did not, however, go so far as to require that criminal defense attorneys become experts in the area of immigration law.  It acknowledged that immigration law is complex and that there will be numerous situations in which the deportation consequences of a particular plea may be unclear or uncertain.  As Justice Alito said in his concurring decision in Padilla, “nothing is ever simple with immigration law”.  Terms such as “conviction”, “moral turpitude”, “single scheme of criminal misconduct” are terms of art and have different meanings in immigration law than in state law.  Other concepts in the Immigration & Nationality Act are ambiguous or confusing to attorneys not versed in the intricacies of immigration law.  Is someone an alien (or are they a citizen without knowing it)? What is the difference between being inadmissible, removable or ineligible for naturalization?  Under Padilla, the criminal defense attorney does not need to know the answers to these questions.  But the alien trying to avoid deportation must.

The question then for the noncitizen accused of a crime is, how can he best protect himself from a “good” plea bargain that results in his deportation?  The immigrant quite plainly must consult an immigration attorney experienced and knowledgeable in the immigration consequences of criminal offenses and convictions and he must do so before he enters into any plea agreement.  Ideally, his criminal defense attorney and his immigration attorney should work together to obtain a “deal” that is beneficial from both a criminal defense and an immigration standpoint.

To the alien who says “why should I have two attorneys just to deal with this one criminal problem?” The answer is “because you want to be able to legally stay in the United States.”