Criminal Defense Counsel has a Sixth Amendment obligation to inform a defendant about immigration consequences or to advise when consequences are clear

The first step has been taken to equate deportation with "punishment". If "deportation 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" then, doesn't the Constitution protect a person facing deportation? And in what ways? And does it matter whether the Respondent is an LPR with criminal convictions or an EWI with no crimes, but also no legal right to be here. In other words, is deportation a "penalty" for everyone? Has deportation moved from being a "collateral" (civil) consequence like loss of state license eligibility to a more integral consequence? If deportation is a penalty, are indigent noncitizens now entitled to appointed counsel in immigration proceedings?

Note: The Board of Immigration Appeals (BIA) has previously held that where a conviction is vacated based solely on rehabilitation or hardship rather than due to a substantive or procedural defect in the underlying criminal proceeding, the alien remains convicted for purposes of immigration law. It further found that a conviction vacated for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes. Thus, convictions overturned under this holding in Padilla will likely not count as a conviction for immigration purposes in most jurisdictions. The 5th Circuit has amended its position with regards to its treatment of vacated convictions and follow the BIA's Matter of Pickering. A conviction vacated on the merits is no longer a conviction for immigration purposes. Decision can be read here:
http://www.ca5.uscourts.gov/opinions/pub/03/03-60842-CV0.wpd.pdf

Padilla v. Kentucky, 130 S. Ct. 1473 (2010): "Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6".

(“[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes. . . . These changes to our immigration law have dramatically raised the stakes of a noncitizen‟s criminal conviction . . . [and] confirm our view that, as a matter of federal law, deportation 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.”) (internal punctuation and citation omitted); see also id. at 1481-82 (because deportation, although civil in nature, is a “particularly severe penalty,” is “intimately related to the criminal process,” and is automatic for a broad class of offenders, it is “uniquely difficult to classify as either a direct or a collateral consequence of conviction); see also id. at 1486 (“[C]ounsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”).

"Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Pp. 7–9".

"Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18".

Justice John Paul Stevens delivered the opinion of the Court in which Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor joined. The majority opinion noted:

"In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill, 474 U. S., at 57; see also Richardson, 397 U. S., at 770-771. The severity of deportation--“the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390-391 (1947)--only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation."

The Court noted in a footnote to this paragraph that “we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences.”

The majority opinion concluded that, “[t]o satisfy [our responsibility under the Constitution to ensure that no criminal defendant-whether a citizen or not--is left to the “mercies of incompetent counsel”], we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

Justice Samuel A. Alito, Jr. filed an opinion concurring in the judgment in which Chief Justice John G. Roberts, Jr. joined. In the concurring opinion, Justice Alito wrote.

In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney's expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client's determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel's duty to assist the client. Instead, an alien defendant's Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.

Justice Antonin Scalia filed a dissenting opinion in which Justice Clarence Thomas joined. He asserted that the Sixth Amendment does not guarantee sound advice on collateral consequences of a conviction. He further contended that affirmative misadvice about those consequences does not render an attorney's assistance in defending against the prosecution constitutionally inadequate.

"The Sixth Amendment guarantees adequate assistance of counsel in defending against a pending criminal prosecution. We should limit both the constitutional obligation to provide advice and the consequences of bad advice to that well defined area."

PADILLA v. KENTUCKY CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 08–651. Argued October 13, 2009—Decided March 31, 2010 http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

The petitioner, a native of Honduras who has lived in the U.S. for 40 years as a legal permanent resident, was arrested in Kentucky after it was discovered that he was transporting nearly 1,000 pounds of marijuana in his freight truck. He was indicted on various misdemeanor and felony charges, including trafficking in marijuana. The petitioner pled guilty to the drug charges reportedly after he questioned his defense attorney about immigration consequences and was told that he did not need to worry about immigration consequences since he had been in the U.S. for so long. He was sentenced to five years of incarceration followed by five years of probation.

After an immigration detainer was lodged against him, the petitioner moved to vacate the plea, asserting ineffective assistance of counsel because counsel misadvised him regarding the immigration consequences of the plea. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post conviction relief on the ground that the Sixth Amendment’s effective assistance-of counsel-guarantee does not protect defendants from erroneous deportation advice.The Hardin Circuit Court denied the motion, but, on appeal to the Kentucky Court of Appeals, the motion was granted, and the matter was remanded to the circuit court for an evidentiary hearing. The court of appeals distinguished Com. v. Fuartado, 170 S.W.3d 384 (Ky. 2005), in which the Kentucky Supreme Court determined that collateral consequences are outside the scope of effective representation of counsel under the Sixth Amendment on the ground that the petitioner sought advice from counsel and was given “gross misadvice” and such an affirmative act by counsel could constitute ineffective assistance.