Hello again, and welcome
to another Case
Blog. Today we will take a rather quick
look at Padilla v. Kentucky. This
is a recent Supreme Court case that stirred up some Criminal
Defense Attorneys. The issue is to
what extent a Criminal Defense Attorney is expected to advise their client of
the possibility of deportation?
In the case of Padilla
v. Kentucky, Mr. Padilla was a lawful permanent resident for the past 40
years. He served the U.S. Armed Forces
honorably during the Vietnam War. Unfortunately,
he was charged with transporting a large amount of marijuana in his
tractor-trailer in Kentucky.
Because he was not a
citizen of the United
States, he was understandably concerned about his chances to remain in the United States. He asked his attorney about what his consequences
would be, and was told that he “did not have to worry about immigration status
since he had been in the country so long.” – This was the wrong advice. In fact it was so wrong that the U.S. Supreme
Court went so far as to say that Mr. Padilla’s deportation consequences were “truly
clear,” and that his deportation was “virtually mandatory.”
But let’s back up a second
and look at the quick history of criminal law and deportations. The first statute that limited immigration occurred
in 1875, and was intended to bar convicts and prostitutes (we are such prudes). I do find it interesting that some of the
first people to be barred from this great land of freedom were prostitutes. The next step was taken in 1891, which
excluded people convicted of felonies, infamous crimes, or misdemeanors
involving “moral turpitude.” In 1917,
the immigration laws were expanded again, and it appears that now legally
present, noncitizens could be deported for committing a crime after gaining entrance
Another change was in the
works at the time though, judicial recommendation against deportation (JRAD). This was a process to allow the judge (the
person that, in many cases, actually determined if the defendant was guilty) to
have a say on whether or not the defendant should be deported. But the idea of giving judged “discretion” in
cases like this seems to have rubbed some people the wrong way. In 1952 this power was reduced. In 1990, the JRAD was entirely eliminated in 1990.
Congress even started eliminating the
Attorney General’s authority to grant discretionary relief from deportation.
I have to pause here and
ask… what the heck is going on? We don’t
want the Court Judge or the Attorney General to be able to make case by case
decisions? There is a reason we use the
Common Law system as opposed to the Civil Law system in this country (with a
few exceptions). I think that the vast
majority of us legally educated individuals realize that each case is not a
circle, square, or triangle to simply be pushed through a codified set of laws. We need to be able to take cases one by one
as they come to the court, and judge them based on the facts of the case, with statutes
to guide us. To put it another way, you
would not expect the General in Washington
to mandate the Operating Procedures of every Commander in the Field, that’s why
they are there. – Sorry, my rant is over,
lets get back to the case.
the case of Mr. Padilla. The court ruled that Mr. Padilla’s attorney
should have told Mr. Padilla of the correct
consequences of pleading guilty, although it held back on determining whether
this actually prejudice Mr. Padilla.
Thus the current rule
appears to be that, at the very least, a criminal defense attorney need do no
more than advise a noncitizen client that pending
criminal charges may carry adverse immigration consequences when deportation
consequences of a plea are unclear. However,
the Court states: “[b]ut when the deportation
consequence is truly clear, as it was in this case, the duty to give correct
advice is equally clear.” (page 12). This statement leaves a few questions. Justice Alito seems to suggest that this
ruling requires criminal defense attorneys to explain the consequences when the
law is succinct and straightforward, although that is not clearly stated in the
majority opinion. Nor is the definition
of “succinct and straightforward. (At
least I was unable to find it).
Now, let’s take a quick
look at a MN standard Gross
Misdemeanor plea petition. On the
fourth and final page we see the following words:
“My attorney has told me
and I understand that if I am not a citizen of the United States this plea of
guilty may result in deportation, exclusion from admission to the United States
of America or denial of citizenship”
the question appears to remain, if this meets the minimum standards set by Padilla
v. Kentucky. In Padilla, the
attorney presented Mr. Padilla with clearly incorrect advice, whereas this
statement informs the defendant that there may very well be consequences. As a friend suggested, advising clients
concerned about the possibilities of deportation to seek a specialist in
immigration is a good idea.
Please remember that the interpretation and analysis presented here is not intended to be legal advice. If you are seeking legal advice please contact us for a free consultation and actual examination the issues that your case may present.
P.S. Have an attorney in your phone? Add us now 612-217-0077 - While we hope you never need us, we're here if you do.
Justice Stevens , Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
JOSE PADILLA, PETITIONER v. KENTUCKY
on writ of certiorari to the supreme court of kentucky[March 31, 2010]
Justice Stevens delivered the opinion of the Court.
Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. 1
In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “ ‘did not have to worry about immigration status since he had been in the country so long.’ ” 253 S. W. 3d 482, 483 (Ky. 2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney.
Assuming the truth of his allegations, the Supreme Court of Kentucky denied Padilla postconviction relief without the benefit of an evidentiary hearing. The court held that the Sixth Amendment ’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a “collateral” consequence of his conviction. Id. , at 485. In its view, neither counsel’s failure to advise petitioner about the possibility of removal, nor counsel’s incorrect advice, could provide a basis for relief.
We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.
The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration 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, Fong Haw Tan v. Phelan , 333 U. S. 6, 10 (1948) , is now virtually inevitable for a vast number of noncitizens convicted of crimes.
The Nation’s first 100 years was “a period of unimpeded immigration.” C. Gordon & H. Rosenfield, Immigration Law and Procedure §1.(2)(a), p. 5 (1959). An early effort to empower the President to order the deportation of those immigrants he “judge[d] dangerous to the peace and safety of the United States,” Act of June 25, 1798, ch. 58, 1 Stat. 571, was short lived and unpopular. Gordon §1.2, at 5. It was not until 1875 that Congress first passed a statute barring convicts and prostitutes from entering the country, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477. Gordon §1.2b, at 6. In 1891, Congress added to the list of excludable persons those “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084. 2
The Immigration and Nationality Act of 1917 (1917 Act) brought “radical changes” to our law. S. Rep. No. 1515, 81st Cong., 2d Sess., pp. 54–55 (1950). For the first time in our history, Congress made classes of noncitizens deportable based on conduct committed on American soil. Id. , at 55. Section 19 of the 1917 Act authorized the deportation of “any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States … .” 39 Stat. 889. And §19 also rendered deportable noncitizen recidivists who commit two or more crimes of moral turpitude at any time after entry. Ibid. Congress did not, however, define the term “moral turpitude.”
While the 1917 Act was “radical” because it authorized deportation as a consequence of certain convictions, the Act also included a critically important procedural protection to minimize the risk of unjust deportation: At the time of sentencing or within 30 days thereafter, the sentencing judge in both state and federal prosecutions had the power to make a recommendation “that such alien shall not be deported.” Id., at 890. 3 This procedure, known as a judicial recommendation against deportation, or JRAD, had the effect of binding the Executive to prevent deportation; the statute was “consistently … interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation,” Janvier v.United States , 793 F. 2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offenses expanded, judges retained discretion to ameliorate unjust results on a case-by-case basis.
Although narcotics offenses—such as the offense at issue in this case—provided a distinct basis for deportation as early as 1922, 4 the JRAD procedure was generally available to avoid deportation in narcotics convictions. See United States v. O’Rourke , 213 F. 2d 759, 762 (CA8 1954). Except for “technical, inadvertent and insignificant violations of the laws relating to narcotics,” ibid. , it appears that courts treated narcotics offenses as crimes involving moral turpitude for purposes of the 1917 Act’s broad JRAD provision. See ibid.(recognizing that until 1952 a JRAD in a narcotics case “was effective to prevent deportation” (citing Dang Namv. Bryan , 74 F. 2d 379, 380–381 (CA9 1934))).
In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Washington , 466 U. S. 668 (1984) , the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, seeJanvier, 793 F. 2d 449. See also United States v. Castro , 26 F. 3d 557 (CA5 1994). In its view, seeking a JRAD was “part of the sentencing” process, Janvier , 793 F. 2d, at 452, even if deportation itself is a civil action. Under the Second Circuit’s reasoning, the impact of a conviction on a noncitizen’s ability to remain in the country was a central issue to be resolved during the sentencing process—not merely a collateral matter outside the scope of counsel’s duty to provide effective representation.
However, the JRAD procedure is no longer part of our law. Congress first circumscribed the JRAD provision in the 1952 Immigration and Nationality Act (INA), 5 and in 1990 Congress entirely eliminated it, 104 Stat. 5050. In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation,110 Stat. 3009–596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, INS v. St. Cyr , 533 U. S. 289, 296 (2001) . Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses. 6 See 8 U. S. C. §1229b. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See §1101(a)(43)(B); §1228.
These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part 7 —of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson , 397 U. S. 759, 771 (1970) ; Strickland , 466 U. S., at 686. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e. , those matters not within the sentencing authority of the state trial court. 8 253 S. W. 3d, at 483–484 (citing Commonwealth v. Fuartado , 170 S. W. 3d 384 (2005)). In its view, “collateral consequences are outside the scope of representation required by the Sixth Amendment ,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view. 9
We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland , 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.
We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States ,149 U. S. 698, 740 (1893) ; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza , 468 U. S. 1032, 1038 (1984) , deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra , at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell , 686 F. 2d 35, 38 (CADC 1982). Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr , 533 U. S., at 322 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions”).
Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendmentright to counsel. Strickland applies to Padilla’s claim.
Under Strickland , we first determine whether counsel’s representation “fell below an objective standard of reasonableness.” 466 U. S., at 688. Then we ask whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. , at 694. The first prong—constitu-tional deficiency—is necessarily linked to the practice and expectations of the legal community: “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. , at 688. We long have recognized that “[p]revailing norms of practice as reflected in American Bar Association standards and the like … are guides to determining what is reasonable … .” Ibid.; Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 3); Florida v. Nixon , 543 U. S. 175 , and n. 6 (2004);Wiggins v. Smith, 539 U. S. 510, 524 (2003) ; Williams v. Taylor , 529 U. S. 362, 396 (2000) . Although they are “only guides,” Strickland , 466 U. S., at 688, and not “inexorable commands,” Bobby , 558 U. S., at ___ (slip op., at 5), these standards may be valuable measures of the prevailing professional norms of effective representation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law.
The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999). “[A]uthorities of every stripe—including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients … .” Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors as Amici Curiae 12–14 (footnotes omitted) (citing, inter alia , National Legal Aid and Defender Assn., Guidelines, supra, §§6.2–6.4 (1997); S. Bratton & E. Kelley, Practice Points: Representing a Noncitizen in a Criminal Case, 31 The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal Defense of Immigrants §1.3 (3d ed. 2003); 2 Criminal Practice Manual §§45:3, 45:15 (2009)).
We too have previously recognized that “ ‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’ ” St. Cyr , 533 U. S., at 323 (quoting 3 Criminal Defense Techniques §§60A.01, 60A.02 (1999)). Likewise, we have recognized that “preserving the possibility of” discretionary relief from deportation under §212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. Cyr , 533 U. S., at 323. We expected that counsel who were unaware of the discretionary relief measures would “follo[w] the advice of numerous practice guides” to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50.
In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U. S. C. §1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable”). 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. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. 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 (as it is in many of the scenarios posited by Justice Alito) , 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. 10 But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
Accepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland . Whether Padilla is entitled to relief on his claim will depend on whether he can satisfyStrickland ’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance.
The Solicitor General has urged us to conclude that Strickland applies to Padilla’s claim only to the extent that he has alleged affirmative misadvice. In the United States’ view, “counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case … ,” though counsel is required to provide accurate advice if she chooses to discusses these matters. Brief for United States as Amicus Curiae 10.
Respondent and Padilla both find the Solicitor General’s proposed rule unpersuasive, although it has support among the lower courts. See, e.g. , United States v. Couto , 311 F. 3d 179, 188 (CA2 2002); United States v.Kwan , 407 F. 3d 1005 (CA9 2005); Sparks v. Sowders , 852 F. 2d 882 (CA6 1988); United States v. Russell , 686 F. 2d 35 (CADC 1982); State v. Rojas-Martinez , 2005 UT 86, 125 P. 3d 930, 935; In re Resendiz , 25 Cal. 4th 230, 19 P. 3d 1171 (2001). Kentucky describes these decisions isolating an affirmative misadvice claim as “result-driven, incestuous … [,and] completely lacking in legal or rational bases.” Brief for Respondent 31. We do not share that view, but we agree that there is no relevant difference “between an act of commission and an act of omission” in this context. Id. , at 30; Strickland , 466 U. S., at 690 (“The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”); see also State v. Paredez , 2004–NMSC–036, 136 N. M. 533, 538–539.
A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” Libretti v. United States , 516 U. S. 29, 50–51 (1995) . When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all. 11 Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strickland analysis.” Hill v. Lockhart ,474 U. S. 52, 62 (1985) (White, J., concurring in judgment).
We have given serious consideration to the concerns that the Solicitor General, respondent, and amici have stressed regarding the importance of protecting the finality of convictions obtained through guilty pleas. We confronted a similar “floodgates” concern in Hill , see id., at 58, but nevertheless applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty. 12
A flood did not follow in that decision’s wake. Surmounting Strickland ’s high bar is never an easy task. See,e.g. , 466 U. S., at 689 (“Judicial scrutiny of counsel’s performance must be highly deferential”); id. , at 693 (observing that “[a]ttorney errors … are as likely to be utterly harmless in a particular case as they are to be prejudicial”). Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega ,528 U. S. 470, 480, 486 (2000) . There is no reason to doubt that lower courts—now quite experienced with applying Strickland —can effectively and efficiently use its framework to separate specious claims from those with substantial merit.
It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea. See, supra , at 11–13. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Strickland , 466 U. S., at 689.
Likewise, although we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas, in the 25 years since we first applied Strickland to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions. 13 But they account for only approximately 30% of the habeas petitions filed. 14 The nature of relief secured by a successful collateral challenge to a guilty plea—an opportunity to withdraw the plea and proceed to trial—imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential.
Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.
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 alsoRichardson , 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. 15
It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson , 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstandingSixth 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.
Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. See Verizon Communications Inc. v. FCC , 535 U. S. 467, 530 (2002) .
The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Mon, May 3, 2010 @ 8:54 AM
Sat, August 27, 2011 @ 3:42 AM
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