Padilla v. Kentucky: Implications for U.S. Immigration This paper provides a review of the relevant literature concerning the case, Padilla v. Kentucky,[footnoteRef:1] discussing citizenship, and similar predicaments in other countries. It is this paper's thesis that the decision in Padilla has significant implications for defense lawyers who must now become familiar with the complexities of immigration law or retain counsel to assist them in this area. Established in Strickland v. Washington, the test for ineffective assistance of counsel is comprised of two parts: (1) defendants must first show that their counsel was constitutionally deficient and (2) show that the deficiency prejudiced the result of their case.[footnoteRef:2] In addition, cases involving guilty pleas require defendants to demonstrate that in the absence of deficient counsel, they would have insisted on a trial.[footnoteRef:3] Furthermore, defendants also enjoy the Due Process Clause protections that require judges and defendants to engage in a conversation concerning the potential consequences of a guilty plea, known as the "plea colloquy." This step is required before defendants are allowed to enter a valid guilty plea. According to Lang, "The plea colloquy is meant to ensure that the plea is knowing and voluntary. While not required by the Fifth Amendment, many states mandate that judges issue general warnings to defendants regarding the immigration consequences of a guilty plea."[footnoteRef:4] [1: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).] [2: Danielle M. Lang, Padilla V. Kentucky: The Effect of Plea Colloquy Warnings on Defendants' Ability to Bring Successful Padilla Claims, 121 The Yale Law Journal 4, 944 (January 2012).] [3: Lang, 944.] [4: Lang, 945.]

Following the decision in Padilla, several lower courts have held that such general court warnings preclude defendants from demonstrating prejudice and prevent them from prevailing on an ineffective assistance of counsel claim in those cases where there might otherwise be a violation of the Sixth Amendment protections.[footnoteRef:5] To determine the current state of affairs, this paper provides a review of the relevant literature concerning Padilla v. Kentucky and its implications for the bar. A summary of the research and important findings concerning this case are provided in the conclusion. [5: Lang, 945.]

Literature Review and Synthesis

Even legal permanent residents who have been convicted twice for crimes of "moral turpitude" can be deported from the United States irrespective of their length of residency and irrespective of whether the crimes were felonies or misdemeanors.[footnoteRef:6] Moreover, the U.S. Citizenship and Immigration Service is empowered to deport any alien who is convicted of an aggravated felony at any point in time.[footnoteRef:7] These cases are far more common than many people might believe, and during the period from 2000 to 2009, more than 920,000 people were deported from the U.S. As a result of their criminal status.[footnoteRef:8] [6: Austin Sarat, Law as Punishment/Law as Regulation. Stanford, CA: Stanford Law Books, 85 (2011).] [7: Sarat, 85.] [8: Sarat, 85.]

In fact, the number of foreign nationals who have been deported from the United States has more than doubled in the last decade.[footnoteRef:9] The process, though, is not automatic and the Citizenship and Immigration Service, immigration judges, and the Board of Immigration Appeals have the authority to deport or not, depending on the individual circumstances that are involved. According to Sarat, "Until the Supreme Court's decision in Padilla v. Kentucky (2010), that fact had been key to defining deportation as an 'indirect' rather than 'direct' sanction."[footnoteRef:10] [9: Kara B. Murphy, Representing Noncitizens in Criminal Proceedings: Resolving Unanswered Questions in Padilla V. Kentucky, 101 Journal of Criminal Law and Criminology 4, 1371 (Fall 2011).] [10: Sarat, 85.]

In the Padilla case, the Supreme Court held that the Sixth Amendment requires defense counsel to inform any client who is not a citizen of the potential for deportation as a result of a conviction. Citing significant revisions of federal immigration law, the Court in Padilla pointed out that deportation is currently "virtually inevitable" and "nearly an automatic result for a broad class of noncitizen offenders."[footnoteRef:11] In its March 31, 2010 decision in Padilla, the Supreme Court held that when defense counsel failed to inform noncitizen clients of the potential for deportation as a result of a conviction, this failure represented ineffective counsel which was violative of the Sixth Amendment. According to Ewald, the Padilla decision was "hailed by advocates as 'momentous' and a 'Gideon decision for immigrants.' The Padilla ruling has been greeted by supporters and detractors alike as a landmark...

Kentucky, 130 S. Ct. 1473, 1478 (2010).] [12: Alec C. Eward, Deportation, Effective Counsel, and Collateral Sanctions: Padilla V. Kentucky (2010). 32 Justice System Journal 2, 235 (May 1, 2011).]
In the past, noncitizens who were threatened with deportation could seek relief from various sources, including the courts, the Immigration and Naturalization Service (the predecessor to the Citizenship and Immigration Service) and the attorney general; however, as the result of a series of Congressional statutes, these avenues of relief have been sharply curtailed. Characterizing deportation as a "harsh" consequence and a "drastic measure," the Padilla Court determined that the automatic nature of deportation due to convictions of crimes gives deportation such a "close connection to the criminal process" that defense attorneys must provide their noncitizens clients with advise concerning the potential for deportation as part of their Sixth Amendment duties, especially when plea bargain agreements are involved. In this regard, the Padilla Court added such deportation advice to lawyer's Sixth Amendment duties while describing this sanction as being "uniquely difficult to classify as either a direct or a collateral consequence."[footnoteRef:13] [13: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).]

Defendants in American court who enter into plea bargains are protected by the Sixth Amendment right to effective assistance of counsel which entitles defendants to the guidance of a competent defense lawyer as well as the Fifth Amendment Due Process requirement that a valid guilty plea must be "knowing," "intelligent," and "voluntary."[footnoteRef:14] According to Lang, "These two rights, both well-established in Supreme Court jurisprudence, work in tandem to ensure that the adversarial process functions fairly, not only in trials, but in plea bargains as well."[footnoteRef:15] [14: Lang, 945.] [15: Lang, 945.]

This issue has become even more important in recent years as the United States continues to seek viable solutions to illegal immigration. At present, there are between 10 million to 12 million illegal immigrants in the country and the Immigration and Customs Enforcement agency currently processes around 400,000 cases related to removal or deportation pursuant to its law enforcement mandate.[footnoteRef:16] Moreover, following the Supreme Court's decision in Padilla, many noncitizens faced with a criminal conviction are in an untenable position due to the vagaries of the decision-making process. For instance, Gilroy advises that, "The legal, adjudicative, and policy environment has become more difficult than any time in memory. Adjudications are unpredictable and hostile, with standards shifting almost day-to-day and adjudicator to adjudicator."[footnoteRef:17] Indeed, some analysts maintain that the decision in Padilla has "started a revolution" in ways that "fundamentally alter the concept of the criminal sentence and eradicating the distinction between direct and collateral consequences. Others contend that Padilla is likely to alter very little because the opinion is narrow, the consequence of non-compliance is small, and the workload of the criminal defense bar, or at least the indigent defense bar, is already unmanageable."[footnoteRef:18] Taken together, these trends mean that the Padilla case was decided at an important juncture in American history where the debates over immigration reform continue to be played out and the need for predictability in judicial decisions has become more important than ever. [16: Marilyn Gilroy, Immigration Law Is Hot Topic at Law Schools, 22 The Hispanic Outlook in Higher Education 7, 43 (January 9, 2012).] [17: Gilroy, 44.] [18: Malia Brink, A Gauntlet Thrown: The Transformative Potential of Padilla V. Kentucky. 39 Fordham Urban Law 1, 39 (November 2011).]

Analysis

The defendant in the Padilla case, Jose Padilla, was a licensed truck driver living and working in California. Although he was born in Honduras, Padilla had lived as a lawful permanent resident of the U.S. For more than 40 years at the time of his criminal charges. When Padilla's tractor-trailer truck was stopped and search in Kentucky, law enforcement authorities discovered large amounts of marijuana. When Padilla was advised by his counsel, he was told that since he had lived in the country for so long, there was no danger of his being deported as a result of his conviction. Based on this advice, Padilla accepted a plea bargain in which he would plead guilty to some charges and receive a total sentence of 10 years, with the last 5 years being served on probation.[footnoteRef:19] [19: Ewald, 236.]

The legal advice provided by Padilla, though, was in error and convictions for drugs are deportable offenses pursuant to federal law in general and mandatory for drug trafficking convictions. In this regard, Murphy reports that, "Criminal law in the United States is a harsh and unpredictable system for noncitizens. In the first paragraph of the opinion, the Court observes that 'Padilla's crime, like virtually every…