You should be aware that if you are not a United States citizen, a conviction to certain charges may result in your deportation, a denial of naturalization and/or a permanent bar from re-entering the US if you should travel abroad and attempt to return.
What does Padilla v. Kentucky, 559 U.S. 356 (2010) hold and how may it affect you?
In 2010, the United States Supreme Court decided the matter of Padilla v. Kentucky. In short, Padilla held that a criminal defense attorney MUST advise a client that his/her plea of guilty to certain charges may make him/her subject to automatic deportation. The Padilla decision further held that when the law is not succinct and straightforward as to whether a guilty plea will result in deportation, a criminal defense attorney, in order to provide effective assistance, need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences; but when the deportation consequence is truly clear, the duty to give correct advice is equally clear.
To simplify Padilla, if a client is not a citizen of the United States, the criminal defense attorney should advise the client that he/she should seek the advice of a qualified immigration lawyer. And moreover, the attorney should research whether a plea of guilt to any crime or offense may be per se deportable. There are some criminal charges that will automatically cause a client to be deported, denied naturalization or be permanently barred from ever re-entering the US. In order to provide effective assistance of counsel, a criminal defense attorney MUST advise a client of these risks.
Apart from one’s legal responsibility to a client, there is an ethical and moral obligation to advise a client properly. If an attorney knows that there are potential adverse immigration consequences that may befall a client, the attorney needs to disclose that to the client so that he/she may make an educated decision as to whether a plea should be entered or whether the matter should proceed to litigation. Sadly, there are many clients who have entered pleas of guilty, were not advised of the immigration consequences and had they been told of these negative consequences, they may have opted to fight their cases and possibly have prevailed after trial.
How Can You Protect Yourself From Adverse Immigration Consequences?
First, make sure that your criminal defense lawyer is qualified to represent your interests. Criminal law is as complex as any other area of law and not every attorney who claims to practice in it should practice criminal law. Second, make sure you disclose your immigration status to your attorney whether he or she asks. The attorney should always ask but unfortunately, there are some attorneys that fail to properly advise their clients. Third, you should speak with an immigration lawyer regarding your charges and the outcome of any plea. Lastly, if you are not a citizen and a particular plea may result in negative immigration consequences, you should discuss with your lawyer the option of going to trial.