This report discusses the extent of deportation-related advice a noncitizen defendant is constitutionally owed in deciding whether to plead guilty to a particular crime. Noncitizens and Guilty Pleas

When an accused is a noncitizen, one especially momentous result of prosecution is possible deportation. He asserted that his attorney had failed to adequately investigate and advise him on the possible immigration consequences of his guilty plea, but instead, according to Padilla, said that Padilla "did not have to worry about [his] immigration status since he had been in the country so long." The Sixth Amendment includes an express right to counsel among other procedural protections it confers to criminal defendants:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense . Representation of a criminal defendant entails certain basic duties.... From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Prevailing norms of practice as reflected in the American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides. The test for relief under Strickland is two-pronged. Supreme Court's Decision in Padilla v. Kentucky

The Supreme Court issued its decision in Padilla v. Kentucky on March 31, 2010. Seven of the nine Justices agreed that the Sixth Amendment right to effective assistance requires that a defense lawyer, at a minimum, raise the possibility of deportation in advising a noncitizen in a criminal case. Nevertheless, he eschewed applying that test in Padilla's case "because of the unique nature of deportation." First, the impact of deportation is profound. On this issue of what immigration expertise is required of defense counsel, the five-Justice majority opinion and the two-Justice concurrence part ways. According to the majority, when immigration law is "succinct, clear, and explicit in defining the removal consequence" of a conviction for a specified crime, an attorney must correctly advise on the very high likelihood of deportation before the accused pleads guilty to the offense. In less straightforward cases, "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." This is a due process obligation of the court, not counsel, and even though there may not be a constitutional remedy in a case like Padilla's—the dissent observes that the matter had not been presented to the lower courts and, remember, that the distinction between direct and collateral consequences was drawn in due process plea decisions—legislatures and the courts could establish (and to a degree have established) nonconstitutional rules and remedies for falling to advise, or for misadvising, on deportation. For that, a defendant must have been "prejudiced" by the error. Even if the courts were to consider "effective assistance" claims in additional contexts, some do not see the implications of considering "collateral" consequences to be overwhelming. Further considerations might pertain to drug or sex crimes. Other variations require that the court direct a defendant to defense counsel for advice, or even that the court ascertain whether a defendant's attorney has discussed possible deportation consequences with the accused.
The Sixth Amendment entitles an accused in a criminal prosecution to "Assistance of Counsel for his defense." This right to counsel implies a right to "effective assistance." Effective assistance has dimensions of both breadth and depth: breadth in the sense of what considerations beyond those immediately at issue in the prosecution should be taken into account, so-called collateral consequences; depth in the sense of what professional standards pertain. In Padilla v. Kentucky, the Supreme Court held that "ineffective assistance" standards require informing a noncitizen defendant on possible deportation when advising on whether to accept a guilty plea. Forced removal through deportation is a civil proceeding separate and apart from criminal prosecution.
The test for deficient representation for Sixth Amendment purposes is two-pronged. First, was the attorney's performance reasonable under prevailing professional norms? Second, was the defendant prejudiced by the attorney's shortcomings? As to the first prong, the Padilla Court emphasized the unique nature of deportation. Criminal courts do not decide whether to deport a noncitizen defendant; rather, federal immigration authorities do. Nevertheless, the Court recognized that deportation can have enormous repercussions for a noncitizen and the noncitizen's family. The Court further observed that Congress curtailed the historic, though indirect, ability of criminal judges to forestall a convict's deportation, at the same time it dramatically expanded the range of crimes that can lead to deportation.
The Court cited the hardship of deportation and its increasingly automatic application in prelude to discussing whether Padilla's attorney fell short of prevailing practice. The lawyer had volunteered that Padilla did not have to worry about deportation in considering whether to plead guilty to marijuana trafficking because he had legally resided in the United States for over 40 years. Yet it was not the volunteering of mistaken advice that was critical to the Court. According to the Court, silence was not an adequate option. Instead, professional norms, as reflected in standards of the American Bar Association, criminal defense organizations, and the like, pointed to an affirmative duty to inform on the risk of deportation.
How far must an attorney go in advising a defendant? The five-Justice majority found immigration law to be "succinct, clear, and explicit" in Padilla's case, and held that in this circumstance defense counsel must correctly advise on the high likelihood of deportation. In less straightforward cases, the majority opined, it might suffice to advise that the pending charges carried a risk of deportation. The two concurring Justices found immigration law to be so complex that defense counsel need only warn of a general risk of deportation in all cases and suggest that the defendant see a specialist for further advice.
Deportation is commonly a risk for noncitizen criminal defendants, but there are other possible immigration consequences of a criminal conviction. Also, all defendants can face other collateral consequences, from loss of a business license to loss of the right to vote to loss of certain public benefits. A number of factors might bear on a defendant's decision to plead guilty, but the Padilla Court carefully limited its holding to advice on deportation. Also left open by Padilla is guidance on when failing to advise on deportation is sufficiently prejudicial to a defendant to warrant nullifying a guilty plea. The Court remanded this issue to lower courts for further consideration.