In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the U.S. Supreme Court held that criminal defense attorneys have a Sixth Amendment obligation to inform their non-citizen clients of the potential consequences of pleading guilty to offenses that might make them deportable. Petitioner Jose Padilla, a lawful permanent resident of the United States for 40 years, sought to reopen his criminal case because his criminal defense attorney told him he did not have to worry about his immigration status because of his long duration as a permanent resident in the United States. In fact, Mr. Padilla’s drug conviction made him deportable as both a controlled substance offender and as an aggravated felon drug trafficker. See 8 USC §1227(a)(2)(B)(i) and 8 USC §1101(a)(43)(B). The Court held that:

Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses… There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward…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. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

While the advice Mr. Padilla received from his attorney was incorrect, the majority left the issue of when deportation consequences are “truly clear” for the lower courts to determine in future cases. This may leave many criminal practitioners confused about the depth of immigration advice they are required to give. As the Padilla majority acknowledged, determining whether or not a conviction will adversely affect a client’s immigration status is often far more complex than it was in Mr. Padilla’s case. A generalized understanding of how criminal convictions are classified under immigration law may shed light on the Padilla court’s expectations.

Deportable Offenses