Judge may vacate conviction if lawyer failed to inform client about immigration consequences

The case, Jose Padilla v. Commonwealth of Kentucky was a landmark case in setting out the requirement that an attorney must inform his or her client about the consequences of a plea of guilty on the immigration status of the client. Prior to this case, it was common practice for advocates to simply inform clients about the direct consequences of the plea of guilty, including the type of sentences available for the court in the particular case. The advice would generally cover the process of trial and the kind maximum sentence that the court could pass in the case of conviction and the sentence likely to be passed in case the client accepted the plea bargain. The attorney did not bear the burden of informing the client about matters that were considered collateral to a conviction; deportation was, until Padilla’s case, considered a collateral consequence.

Of importance to the American legal system is the 6th Amendment which provides for the rights of an accused person to be represented by an attorney. This provision brings to life the duties of an attorney to a client including the duty of zealous representation and communication. The case of Strickland v Washington discusses these duties in depth. Further, it is provided in this case that a client who fails to receive effective counsel may be able to get their convictions overturned. Since deportation pursuant to a conviction for certain criminal offences was considered a collateral effect of conviction, defendant’s who pleaded guilty pursuant to a plea bargain without being advised by their attorney’s about the possibility of deportation were not allowed the relief envisioned in Strickland v. Washington.

Currently, however, a counsel’s duty to effectively represent his or her client is encompasses the need to advice the client on important and detrimental consequences of a plea of guilty including the possibility of deportation. According to the Supreme Court, immigration penalties being a direct consequence of conviction defendant’s in a criminal trial have the right to advise on the immigration consequences pursuant to a conviction. Counsels are thus required to do thorough research on the available content concerning the immigration effects of a conviction before advising their clients to plead guilty or to enter a plea deal.

An attorney has a duty to advise a client on three important aspects of the effects of a conviction on their immigration status. First, if the law is clear, that a conviction will lead to deportation, the advocate should bring this to the attention of the client. Secondly, is the consequences of conviction to the immigration status of a defendant is not clear, the advocate should inform the client to enable the client to make an informed decision. Failure to give information about deportation to a client may be interpreted as ineffective legal counsel. On this basis, the defendant may be able to get their convictions quashed.