Padilla Risk of Deportation--Ineffective assistance of counsel

At our Criminal Jurisprudence & Practice Committee meeting today there was considerable discussion about the proposed court rules regarding effective assistance of counsel when there is a risk of deportation associated with one's plea of guilty or no contest.


At our meeting prosecutors and defense counsel seem to be in agreement that under Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010), defense counsel is required, at a minimum, to inform a defendant that if (s)he is not a citizen of the United States, their plea of guilty or no contest may result deportation. (If it is clear that the plea of guilty or no contest will result in deportation, Padilla requires that the client be given correct advice; it is, however, not always clear what convictions will result in deportation.)

Because one's status as a United States citizen is not determined by their appearance, defense counsel needs to discuss this risk of non-citizen deportation with each and every client. i.e. a non-citizen may include someone from the Middle East, South America, Canada, Europe or otherwise.

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Accordingly, until otherwise directed by the Supreme Court, it is my intention to begin asking the following questions at any plea of guilty or no contest:

1. Do you understand that if you are not a legal citizen of the United States that your plea of guilty or no contest may result in deportation?

2. Have you discussed this with your attorney?

If this discussion has not taken place, a recess or adjournment will be offered to the defense to allow further discussion or consideration of this issue.

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If you are planning on attending the SBM annual meeting in Grand Rapids, consider attending the panel discussion put on by the Criminal Issues Initiative relating to the appropriate remedies for Padilla violations at the state and federal levels on Thursday, September 30, 2010 from 2:00-4:00 p.m. I have been asked to be the moderator for the panel discussion; Frank Eaman will be speaking on federal issues; Noel Saleh will be the immigration expert, and a third tbd person will speak to state procedures.