At some point in their lives everyone comes in contact with the police, many times for simple traffic violations that do not carry serious consequences. However, many criminal offenses can and often do carry serious consequences, especially if you are not a United States Citizen. The majority of non-citizens have no idea that a conviction for certain criminal offenses could lead to the loss of their current status and deportation.
The intersection of criminal and immigration law is extremely complicated. Many times the criminal defense attorney has no idea that there are immigration consequences to pleading guilty to an offense let alone the seriousness of those consequences. If you are a non-citizen who entered a guilty plea and your defense attorney did not advise you of the immigration consequences then there may be some relief if you come in contact with the immigration system as a result.
On March 31, 2010 the United States Supreme Court decided Padilla v. Kentucky which affirmatively established that the Sixth Amendment of the United States Constitution requires a defense attorney to advise anyone who is not a citizen of the United States of the immigration consequences of pleading guilty to a criminal offense. If the criminal defense attorney did not advise of immigration consequences then the non-citizen could bring a claim of ineffective assistance of counsel.
In order to bring a successful ineffective assistance of counsel claim, you must demonstrate that the attorney’s representation fell “below an objective standard of reasonableness” and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668. This means that the attorney did not do what a reasonable person would have done knowing that a non-citizen was about to plead guilty to a criminal charge and that had the attorney not made that mistake, the non-citizen would be in a better position (e.g., the non-citizen would not have plead guilty).
The criminal defense attorney does not need to be well versed in immigration law and is not required to give the non-citizen a list of “what-ifs” but he is required to, at the very least, tell the non-citizen that the pending criminal charges against him may carry negative immigration consequences.