In Padilla v Kentucky, __ S. Ct. __, 2010 WL 1222274 (Mar. 31, 2010), a five-justice majority held that because "negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel," and because deportation is virtually mandatory and inevitable for a vast number of noncitizens convicted of crimes and is "an integral part-indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes," ... "counsel must inform her client whether his plea carries a risk of deportation."
So, what advice is required?
"[W]hen the deportation consequence is truly clear, as it was in this case [drug offenses except for the most insignificant marijuana offenses are deportable, 8 U.S.C. § 1227(a)(2)(B)(i)], the duty to give correct advice [i.e., you will be subject to deportation if you plead guilty to this charge] is equally clear." But "[w]hen the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito in the opinion), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences."
In the wake of Padilla, the Immigrant Defense Project has issued the following practice advisory which provides information and strategies for dealing with the implications of Padilla:
DUTY OF CRIMINAL DEFENSE COUNSEL REPRESENTING
AN IMMIGRANT DEFENDANT AFTER PADILLA V. KENTUCKY