Do Criminal Defense Attorneys Have to Advise Immigrants of the Consequences to Their Immigration Status Before They Plead Guilty to a Crime?

By: Wallin & Klarich

On Tuesday, October 13, 2009, the United States Supreme Court heard oral arguments in Padilla v. Kentucky in which the issue was whether criminal defense attorneys are required to advise their clients of the consequences to immigration status if he or she pleads guilty to a crime.

If the court were to decide in favor of the defendant, then this would mean that every California criminal defense attorney would be required by law to tell their clients about the ramifications of pleading guilty to a crime on their immigration status. Failure to do so would result in a viable Inadequacy of Assistance Claim (“IAC”). A successful IAC claim could mean that a defendant would be entitled to withdraw his guilty plea and would be then entitled to a jury trial.

The U.S. Supreme Court agreed that it would be unfair to not permit the defendant to withdraw his plea in this case because he had pled guilty without knowing that such a plea would cause him to be deported. This sort of consequence would have been extremely harsh, especially for a person who has been living in the U.S. for more than twenty years. However, if required, it would be practically impossible to administer given the public defender’s high volume of cases.

Since hearing oral arguments the court held that “collateral consequences of advice by counsel is outside the scope of the guarantee of the Sixth Amendment’s right to counsel.” Furthermore, the court reasoned that counsel’s advice on the consequences of a plea with respect to immigration is not required and therefore cannot constitute ineffectiveness.

It is important to contact a criminal defense attorney who can provide clarity in terms of your rights under the Constitution and the consequences to your immigration status. If you or someone you love has been accused of a crime in California, contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-280-6839 or for a consultation of your case. We can help you.

Posted In: Criminal Defense