The Risk Manager, Summer 2010

In Commonwealth v. Padilla (253 S.W.3d 482, Ky., 2008), the Kentucky Supreme Court denied a noncitizen’s claim of ineffective assistance of counsel for failure of his defense counsel to correctly advise him of the deportation consequences of a guilty plea. The Court ruled that deportation is merely a collateral consequence of conviction and, therefore, the Sixth Amendment’s effective assistance-of-counsel guarantee did not apply.

The U.S. Supreme Court overruled this finding in Padilla v. Kentucky (U.S., No. 08–651, 3/31/10) by holding that defense counsel must inform a client of the possibility of deportation if a guilty plea carries that risk. The Court’s decision is explained in the case Syllabus as follows:

Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

We first alerted you to the increased risk of malpractice in immigration representations back in 2002. This new risk for Kentucky lawyers was the result of the increasing number of immigrants living in Kentucky and the post-9/11 laws resulting in the strict enforcement of immigration law (read deportation). Our prior newsletters on immigration risk management included two checklists. Now seems an appropriate time to offer them again.

From the Winter 2002 Newsletter:

Lawyers should advise all clients not U.S. citizens to carry required documentation with them at all times; e.g. green card, student visa, or INS approvals. This is the law, but was not being enforced. It is now. Other considerations are:

  • Lawyers defending immigrants in criminal cases are not considering the immigration consequences of pleading guilty to serious crimes. Conviction causes the immigrant to be subject to removal and ineligible for many, if not all, forms of relief from removal. It is essential that defense counsel know the unintended consequences of a guilty plea for immigrants when plea-bargaining.
  • Lawyers can expect to be asked to help alien clients prepare for border crossings. This requires a comprehensive review of a client’s history to prepare the client for a searching background check when attempting to cross the U.S. border. Refer to the U.S. government’s list of terrorist organizations in making this review.
  • Immigrants who have overstayed their visa and are “out of status” may seek advice on how to apply for an extension. The old practice of returning to the appropriate consulate overseas to obtain a visa and return to the U.S. is now problematic. There could be considerable difficulty in obtaining a new visa and re-entry into the U.S. is no sure thing. If immigrant clients do leave the U.S. on a trip, advise them to take their complete file of documentation authorizing U.S. residency and an updated letter of employment. It may be appropriate to seek means other than leaving the U.S. to regain legal status.
  • Immigrants seeking permanent residency or citizenship may ask for legal advice in preparing application forms. Stress the absolute necessity for meticulous completion of all forms to avoid automatic rejection for an incomplete submission.
  • Alien clients should be advised in the strongest terms not to miss an immigration hearing. If they do, they can expect to be pursued by the authorities and face removal.

See “Threat of Terrorism Yields Surge in Immigration” by Diana Digges, Lawyers Weekly USA, 2001 LWUSA 829, 10/15/01.

From the Spring 2003 Newsletter:

F. J. Capriotti III ( and Richard M. Ginsburg published in the Oregon Professional Liability Fund newsletter “In Brief” an excellent checklist for obtaining the key information required for immigrant representation with special emphasis on criminal matters. It is reprinted here with permission.

If your client’s case involves an immigrant issue, gather and prepare the following information.

  1. Name and all aliases.
  2. Date and place of birth.
  3. Native language and level of English fluency.
  4. Summary of immigration history (including first/last entry to the United States, and prior INS arrests/deportations).
  5. A copy of your client’s:
    • Passport (all pages).
    • “Green card” (front and back) (this card proves that an alien is a lawful permanent resident).
    • I-94 arrival card (front and back – placed in the passport at the time of arrival).
    • Any “other” immigration related documents.
  6. Information on family, especially parents, children, or spouse who were born in the United States or possess a green card (include ages and birth places) and copies of their immigration related documents.
  7. Any immigration documents filed for the client by family members and/or employers and INS receipts and notices.
  8. If your client has a green card, when and how he or she got it. (Note: This information appears in different places depending on when the green card was issued. Some cards have the code “ADJ DATE,” others have it in reverse-date format such as: 980114.)
  9. If your client is or has been a nonimmigrant (such as student, tourist, etc.), list periods and any violations of status or overstays.
  10. A list of the crime(s) the client is accused of, including statutory citations, and copies of all charging documents and police reports.
  11. A list of the possible crimes (including violations) you are considering as a plea for your client.
  12. A list of the sentencing possibilities for pleas you are considering. Include information on statutory maximum sentence possible and years probable (including estimates of years of actual incarceration and year of suspension/probation).
  13. If the client has already been convicted, or has prior convictions, provide statutory citations, charging documents, police reports, and relevant orders/judgment/sentence. If not listed on the documents, also provide information on whether this crime is classified as a violation and/or infraction and/or misdemeanor and/or felony, including statutory maximum and actual sentences imposed.
  14. Have any of the crimes (including the current crimes) been committed against a spouse, live-in partner or person with whom the client shares a child in common or has the client ever been found to have violated a restraining order?
  15. Has the client ever admitted having committed a crime (or the essential elements of a crime) to a government employee, or under oath to anyone?
  16. Has the client ever had any other problems or encounters with the law?
  17. Is the client being detained and is there an INS hold?