Padilla: A Green-Card Holder Said His Lawyer Told Him Not to Worry About Deportation

You are not a citizen, you have been charged with a crime, and the offer on the table sounds good. You ask your lawyer whether a plea will affect your green card. The lawyer tells you not to worry. Or the lawyer says nothing about it at all.

Either way, the lawyer may have failed you. The Sixth Amendment requires a criminal defense lawyer to tell a noncitizen client whether a plea carries a risk of deportation. When the immigration statute makes the consequence clear, the advice has to be correct. When it does not, the lawyer must at least warn that there is a risk. That duty does not by itself undo a conviction: The person must also show the bad advice made a difference, and under federal law a conviction already final on March 31, 2010 generally cannot use this rule.

The rule comes from Padilla v. Kentucky, 559 U.S. 356 (2010), No. 08-651, decided March 31, 2010. The Supreme Court took the case to decide whether Jose Padilla’s lawyer had a duty to tell him the plea would lead to his removal. The Court said yes. It held that he had adequately alleged that his lawyer fell short, and it sent the case back. Justice Stevens wrote for five justices. Justice Alito and Chief Justice Roberts agreed with the result on narrower grounds, and Justices Scalia and Thomas dissented.

Forty years, a truck and a bad answer

Padilla was born in Honduras and had been a lawful permanent resident for more than 40 years. He served in the U.S. armed forces during the Vietnam War. He drove a tractor-trailer, and he pleaded guilty in Kentucky to transporting a large amount of marijuana in it.

In later proceedings he said his lawyer had not only failed to warn him about deportation but had told him he “did not have to worry about immigration status since he had been in the country so long.” He said he relied on that advice and would have gone to trial otherwise. The plea made his deportation virtually mandatory.

The Kentucky Supreme Court denied relief without a hearing, even assuming all of that was true. Deportation, it reasoned, is only a “collateral” consequence of a conviction, outside what the Sixth Amendment covers. Many courts agreed with that view. What the lawyer said, whether Padilla relied on it and what he would have done were therefore allegations the Court accepted as true. At that stage, no court had found what the lawyer actually said.

Why deportation became part of the penalty

The Court began with history, because history explains the result. For most of the twentieth century, a conviction did not automatically mean deportation. From 1917, a sentencing judge could issue a binding recommendation against deportation, and for decades the Attorney General could also grant discretionary relief. So, the Court said, “there was no such creature as an automatically deportable offense.”

Congress took those protections away. It eliminated the judge’s recommendation in 1990 and repealed the Attorney General’s broad discretionary relief in 1996. Today, for many offenses, removal is, in the Court’s words, “practically inevitable,” with only limited discretionary relief left. The conclusion followed: Deportation is “an integral part—indeed, sometimes the most important part” of the penalty for a noncitizen who pleads guilty to specified crimes.

That history disposed of Kentucky’s theory. The Court said it had never used a line between direct and collateral consequences to define what competent counsel must do, and it did not decide whether that line is ever appropriate. Deportation is civil, but it is so closely tied to criminal convictions that it is “uniquely difficult to classify” as either. So the ordinary test from Strickland v. Washington applied. It asks whether the lawyer’s work fell below an objective standard of reasonableness, and whether there is a reasonable probability the result would have been different without the error.

What a defense lawyer has to say

On the first question, the Court looked to professional norms. Bar standards, public defender guidelines and practice manuals all told defense lawyers to advise noncitizen clients about deportation.

Then it drew the line that matters most. The drug-removal statute was “succinct, clear, and explicit.” As the Court read it, the statute reached all controlled-substance convictions except a single offense of possessing 30 grams or less of marijuana for personal use. A later case, Mellouli v. Lynch, requires the government to tie the conviction to a federally listed drug, so the exact state offense can matter. Padilla’s lawyer could have found the answer by reading it. “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,” the Court wrote.

The Court recognized that immigration law is a specialty and that many answers are unclear. So the duty scales with the clarity of the law. When the law is not succinct and straightforward, a lawyer “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” But when the consequence is truly clear, “the duty to give correct advice is equally clear.” Even in the unclear case, the lawyer has to say something.

Silence is not a safe harbor

The Solicitor General offered a middle position: Lawyers need not discuss deportation, but if they do, they must get it right. The Court rejected that limit. It would give lawyers a reason to stay silent on a matter of great importance, and it would deny the most basic advice to the clients least able to find it themselves. “When attorneys know that their clients face possible exile from this country and separation from their families,” the Court wrote, “they should not be encouraged to say nothing at all.”

The Court also answered the worry that convictions would be undone in large numbers. A petitioner still has to clear Strickland’s high bar. Pleas are challenged less often than trial convictions. And a person who wins gets the chance to withdraw the plea, which means losing the deal. The Court added one point in the other direction: Informed bargaining can help both sides, because a defense lawyer who understands the consequences may negotiate a plea to an offense that does not trigger removal.

The concurrence and the dissent

Justice Alito, joined by Chief Justice Roberts, agreed that a lawyer who misleads a client about deportation can be ineffective. He would have stopped there, adding only that a lawyer should warn that a conviction may have immigration consequences and suggest seeing an immigration specialist. He thought the Court’s test was a “vague, halfway test,” and he catalogued how hard it can be to tell whether an offense is an aggravated felony or a crime involving moral turpitude. He also pointed out something readers should remember: An offense can make someone inadmissible without making that person deportable, so a person told only that a plea will not lead to removal could leave the country and be unable to return.

Justice Scalia, joined by Justice Thomas, would have held that the Sixth Amendment guarantees a lawyer for defense against the prosecution, not advice about what follows it. Legislation, he said, could address the problem more precisely.

Winning this point does not end the case

The Court decided only the first half of Strickland. It held that Padilla had sufficiently alleged deficient performance, reversed the Kentucky Supreme Court and sent the case back. Whether he could show prejudice was a question it did “not reach because it was not passed on below.” To win on that second half, a person must show a reasonable probability that, with correct advice, he would have rejected the plea, and that doing so would have been rational.

In Lee v. United States, 582 U.S. 357 (2017), the Court found that showing met in what it called unusual circumstances. Jae Lee had no real defense, but deportation was the deciding issue for him. He had lived here for decades with no ties to South Korea, and trial risked only a year or two more in prison. The Court cautioned that a defendant with no viable defense will rarely be able to show this, and that judges should look for evidence from the time of the plea rather than rely only on later assertions.

Who can still use Padilla

Timing is the limit that surprises people. In Chaidez v. United States, 568 U.S. 342 (2013), a green-card holder from Mexico had pleaded guilty to mail fraud in an insurance scheme. Her conviction became final in 2004. According to her, no one told her about the immigration consequence. Immigration officials began removal proceedings in 2009, after her citizenship application alerted them to the conviction. Justice Kagan, for six justices, reasoned that before asking whether the lawyer’s work was reasonable, Padilla first had to decide whether the Sixth Amendment reached deportation advice at all, and lower courts had almost uniformly said it did not. So the Court held that Padilla announced a new rule, so “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Justices Sotomayor and Ginsburg dissented.

Chaidez was about a lawyer who said nothing. A lawyer’s false assurance can be different. In the Ninth Circuit, which includes California, United States v. Chan, 792 F.3d 1151 (9th Cir. 2015), held that Chaidez does not control the older rule against affirmative misadvice, so that claim can still reach earlier convictions, though it still has to be proved. A state court can also give a new rule broader effect, as Danforth v. Minnesota, 552 U.S. 264 (2008), allows.

What to do before and after a plea

These steps are our practical advice, based on these decisions.

• Tell your lawyer you are not a citizen, before any plea. A defense lawyer cannot advise on a risk the lawyer does not know about. Say what status you hold, and bring your card or papers.
• Get the answer in terms of the exact offense. A vague reassurance is not an answer. Ask which statute you would plead to, what sentence you would receive and what those do to your status, and whether a different charge would be safer. Padilla notes that a lawyer who understands these consequences may be able to negotiate a conviction and sentence that reduce the risk of deportation.
• Bring in an immigration lawyer before you sign. Consider both removal and whether you could return after travel. As Justice Alito noted, those are different questions.
• Do not rely on the judge’s warning. Many states require judges to warn about immigration consequences, including California under Penal Code section 1016.5. A general warning does not tell you what will happen to you.
• If you have already pleaded, write down what you were told. Who said what, when and in what words, and what mattered to you at the time. Keep family, work and home records from then. Lee turned on evidence from the time of the plea.
• Check the date your conviction became final. A conviction generally becomes final when direct appeals are over or the time to appeal has passed. If that was before March 31, 2010, a claim that your lawyer simply failed to warn you is closed in federal court under Chaidez. If your lawyer gave you wrong information, or if state law offers another route, you may still have options. A later date does not mean you still have time, because each route has its own custody and timing rules.
• Look at California’s own statute. Penal Code section 1473.7 provides a separate route for challenging a conviction over immigration consequences. The statute has its own eligibility, proof and timing requirements, explained below.
• Remember the trade. Withdrawing a plea reopens the charges. Have the risk of a worse result explained before you file.

California has a separate route

California provides a separate route for a person who is no longer in criminal custody. Under Penal Code section 1473.7, a prejudicial error damaging your ability to meaningfully understand, defend against or knowingly accept a conviction’s immigration consequences can justify setting aside the conviction or sentence. You need not prove constitutionally ineffective counsel. You must prove the statutory ground by a preponderance of the evidence and show that the conviction is causing, or could cause, removal or denial of an immigration benefit, lawful status or naturalization. The court may find a motion late if it was not filed with reasonable diligence after the later of the immigration notices specified in the statute. Bring those notices with the plea papers.