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Does the 6th Amendment Require Defense Attorney to Advise Non-Citizen of Immigration Consequences of a Criminal Conviction? The U.S. Supreme Court May Decide.

There are two outer guideposts for attorney practice: what is ethical and what is effective counsel. It is well settled that defense attorneys have an ethical duty to determine and advise the defendant of potential collateral consequences of their conviction, including immigration consequences. Standard 14-3.2 and comment, ABA Standards for Criminal Justice Pleas of Guilty, 3rd Ed. Whether defense attorney conduct constitutes ineffective assistance of counsel is another matter.

Increasingly, courts recognize that affirmative misadvice about the immigration consequences of conviction may be grounds to vacate the conviction.  On February 23,2009, the U.S. Supreme Court agreed to hear a case that considers defense counsel’s duty to inform their non-citizen clients about the immigration consequences of a plea. Padilla v. Commonwealth of Kentucky, Docket No. 08-651.  The outcome of this case may change the entire landscape of criminal defense practice.


Ethical Rules & Guidelines

Ethical Rules regarding defense counsel’s obligation to advise defendant of immigration consequences are contained in the ABA Model Rules of Professional Conduct and the ABA Standards of Conduct for Pleas of Guilty.  See Standard 14-3.2 and comment, ABA Standards for Criminal Justice Pleas of Guilty, 3rd Ed. An update is due to come out this year.

Judicial Rules of Conduct are also relevant to the subject of criminal-immigration law, particularly the taking of guilty pleas.


Ineffective Assistance of Counsel Cases

A number of federal and state cases discuss defense counsel’s obligation to advise defendant of immigration consequences. Below are some of those cases:

Rubio v. State, 194 P.3d 1224 (Nev. Oct. 30, 2008)(may attack plea if based upon affirmative misadvice by defense counsel).

U.S. v. Kwan, 407 F.3d 1005 (9th Cir. 2004)(affirmative misadvice about immigration consequences is ineffective assistance, unclear if silence would sustain ineffective assistance claim).

New Mexico v. Pardez, 101 P.3d 799 (N.M. 2004)(defense counsel has affirmative duty to specifically advise defendant of immigration consequences of conviction).

U.S. v. Cuoto, 311 F. 3d 179 (2nd Cr. 2002)(failure to inform client of deportation consequences of plea may be objectively unreasonable).


States Requiring Judicial Advisal of Potential Immigration Consequences

In many states, judges now have an affirmative duty to advise the defendant that there may be adverse immigration consequences as a result of a plea as part of the courts duty to ensure that the plea is knowing and voluntary.

The following is a list of states that require a court to advise the defendant that the criminal conviction may cause adverse immigration consequences as part of the plea proceeding:

Ar. R.Crim.P. 11(c)(3)(C)

Ar. Rules of Court, rule 17.2(f)(2004)

Cal. Penal Code § 1016.5 (2006)

Conn. Gen. Stat. Ann. § 54-1j (2006)

D.C. Code 1981 Stat. § 16-713 (2006)

Fla. R. Crim. P. 3.172(c)(8) (2006)

Ga. Code Ann. § 17-7-93(c) (2006)

Haw. Rev. Stat. § 802E-2 (2005)

Mass. Gen. Laws Ann. ch. 278, §29D (West 1994)

Id. Crim. Rule. 11(d)(1)

Ill. Comp. Stat. 5/113-8 (2006)

Iowa R. Crim. Proc. 2.8(2)(b)(2005)

Me. R. Crim. P. 11(b)(5) (2006)

Md. R. 4-242(e) (Michie 2001)

Minn. Rule Crim. Proc. 15.10(d)(felonies), § 15.02(2)(misdemeanors)(2006)

Mont. Code Ann. § 46-12-210(f) (2005)

Neb. Rev. St. §29-1819.02 (2006)

N.C. Gen. Stat. § 15A-1022(a)(7)(2006)

N.M. Dist. Ct. R.Cr.P. 5-303(F)(5) (2006)

N.Y. Crim. Proc. Law § 220.50(7) (2006)

N.C. Gen. Stat. § 15A-1022(a)(7)(2006)

Ohio Rev. Code Ann. § 2943.031(2006)

Ore. Rev. Stat. § 135.385(2)(d)(2006)

R.I. Gen. Laws § 12-12-22 (2006)

Tex. Code Crim. Proc. Ann. Art. 26.13(a)(4)(2005)

Vt. 13 V.S.A. § 6565

Wash. Rev. Code Ann. § 10.40.200 (2006)

Wis. Stat. § 971.08(2) Stat. Ann. § 971.08(1)(c) (2006)