103

PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETAL

CHANGES –
U.S. IMMIGRATION LAW PROPOSALS FOR LEGAL
PROFESSIONALS IN AN EFFORT TO AVOID LEGAL
MALPRACTICE BECAUSE OF INEFFECTIVE ASSISTANCE
OF COUNSEL

Nelda V. Trevino*

I. INTRODUCTION
This legal scholarly writing is illustrative of a combination of
two legal pedagogic templates: a casenote and an article. It can be
classified as a casenote because it analyzes Padilla v. Kentucky, 1 a
recent U.S. Supreme Court decision intimately tied to immigration
law and proper Sixth Amendment rights afforded to non-citizens. 2 On
the other hand, this writing can also be described as an article
because, with Padilla standing as its basis and foundation, it offers
new proposals and ideas in an effort to ameliorate the transforming,
ever-changing and cumbersome immigration law practice of the U.S.
*
I would like to express my most sincere gratitude to all those who gave their
assistance and support in completion of this paper. I want to thank Professor
Rebecca Stewart for her guidance, advice and encouragement. I would also like to
thank Professor Imran B. Mirza, for it was his enthusiasm and passion for
immigration law that inspired and motivated me to write this paper. Also, a special
thank you to the counsel mentioned from south Texas (Rio Grande Valley region)
for their invaluable time and interviews. Finally, I would like to thank my parents
for their encouragement and faith in my pursuit of the study of law, and, above all,
God – for His guidance, mercy and unfailing love.
1
Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
2
Adonia R. Simpson, Judicial Recommendations Against Removal: A Solution to
the Problem of Deportation for Statutory Rape, 35 NEW ENG. J. ON CRIM & CIV.
CONFINEMENT 489, 489-90 (2009) (“Non[-]citizens include immigrants who are
lawful permanent residents (LPRs) and undocumented persons, as well as those
temporarily in the United states for a fixed period of time, such as business visitors,
tourists, students and temporary workers.” ).
 104

Current immigration law 3 dictates that deportation 4 is the

mandatory result of many criminal convictions, including minor
crimes 5. An estimated 150,000 non-citizens (i.e., immigrants) will be
deported by the end of next year because of convictions resulting in
mandatory deportation. 6 Most non-citizens, and their respective

3
Interview with Carlos Garcia, Attorney at Law, Law Offices of Raul García and
Associates, McAllen, Tex. (Jul. 16, 2010) (explaining that when a non-citizen
defendant is criminalized, the legal process generally includes a charge, conviction
(i.e., trial), and sentence; defendant then serves sentence and is subsequently
brought before an immigration judge who determines deportation matters,
specifically “unlawful” entry and/or legal “removal” proceedings; during those
proceedings, the non-citizen defendant has no right to counsel); see also Abel v.
U.S., 362 U.S. 217, 237 (1960) (illustrating that deportation proceedings are civil
proceedings to which the constitutional protections applicable to criminal
prosecutions do not apply).
4
See Maureen A. Sweeney, Fact or Fiction: The Legal Construction of
Immigration Removal for Crimes, 27 YALE J. ON REG. 47, 51 (Winter 2010) (“Tens
of thousands of individuals are removed from crimes each year, many after entering
guilty pleas without any knowledge that their plea would lead directly to their
removal and permanent banishment from the United States, with no possibility for
deviation, equity or mercy.”).
5
E.g., Brief for Asian American Justice Center, et. al. as Amici Curiae Supporting
Petitioner, Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (No. 09-60),
(discussing the deportation case of Jerry Lemaine: Lemaine, a legal permanent
resident, was caught with one marijuana cigarette, and pursuant to the advice of a
legal aid lawyer, plead guilty. Under state statutes, the penalty was only a $100
fine; however, his guilty plea led to a sentence of three years behind bars. Lemaine
is currently battling deportation to Haiti - a country he left at age three); E.g., Bryan
Lonegan, American Diaspora: The Deportation of Lawful Residents from the
United States and the Destruction of their Families, 32 N.Y. U. REV. L. & SOC.
CHANGE 55, 55-56 (2007) (illustrating the deportation case of Hemnauth Mohabir, a
lawful permanent resident, held by immigration authorities at an airport after legally
re-entering the country; he was detained because of a five-year old conviction for
possession of $5 worth of cocaine, for which he had been fined $250; Mohabir
subsequently spent two years in immigration detention and was then deported,
leaving behind his U.S. citizen wife and son); See, e.g., Minto v. Mukasey, 302 F.
App’x 13 (2d Cir. 2008) (involving a noncriminal possession violation).
6
Seth F. Wessler, Quotas or Not, Deportation is a Wrecking Ball, COLORLINES
(March 30, 2010, 1:59 PM),
http://colorlines.com/archives/2010/03/new_deportation_numbers_and_lots_of_em
 105

attorneys, fail to realize that once they plead guilty to a crime (which
is usually done in an attempt to secure a minimum punishment), they
unknowingly initiate their own deportation proceedings. 7
Mandatory deportation has not been viewed by the U.S. courts
as punishment and is therefore classified as a civil matter, 8 even
though non-citizens are charged with criminal matters and then
subsequently deported because of their criminal act(s). 9 Because of
such view, many courts have deemed immigration consequences,
such as deportation, to be a collateral consequence rather than a direct
consequence, and have thus held “that the failure to advise non-
citizen criminal defendants of possible deportation consequences does
not constitute ineffective assistance of counsel.” 10 As a result, before
the Supreme Court rendered its 2010 decision in Padilla, most
courts 11 held that defense counsel who failed to advise and inform

pty_words.html; see 8 U.S.C. § 1227 (2002) (also referred to as § 237, which sets
out language for classes of deportable aliens).
7
See Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (“Padilla relied on his
counsel’s erroneous advice when he pleaded guilty to the drug charges that made
his deportation virtually mandatory.”); see also 8 U.S.C. § 1227 (2002) (also
referred to as § 237, which sets out language for classes of deportable aliens).
8
See Padilla, 130 S. Ct. at 1476.
9
See Sweeney, supra note 4, at 54 (“[C]ourts have generally relied on the
characterization of deportation as a remedial sanction and have also virtually
universally held that deportation is a collateral consequence of a conviction; for
these reasons, a criminal defendant’s constitutional protections do not attach to
proceedings relating to the immigration consequences of a conviction.”).
10
Lindsay VanGilder, Ineffective Assistance of Counsel Under People v. Pozo:
Advising Non-Citizen Criminal Defendants of Possible Immigration Consequences
in Criminal Plea Agreements, 80 U. COLO. L. REV. 793, 793 (Summer 2009); see
also Sweeney, supra note 4 at 54 (explaining that immigrants are not afforded
constitutional protections during deportation proceedings because courts view
deportation as a remedial sanction).
11
Commonwealth v. Furtado, 170 S.W.3d 384, 386 (Ky. 2005) (holding that
collateral consequences are outside the scope of representation required by the Sixth
Amendment); Meaton v. United States, 328 F.2d 379, 381 (5th Cir. 1964) (holding
that refusal of the court to grant leave for withdrawal of a plea of guilty due to
appellant’s failure to understand the collateral effects was not abuse of discretion);
United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (“A collateral
 106

clients of possible immigration consequences did not violate the Sixth

Amendment’s right to effective assistance of counsel. 12 However, the
Supreme Court’s recent treatment of this issue has resulted in a
change to the legal landscape for non-citizens represented by
counsel. 13
In Padilla, the petitioner, Jose Padilla, a lawful permanent
resident, faced deportation proceedings after entering a guilty plea on
drug related charges in the Hardin Circuit Court of Kentucky. 14
Padilla claimed that he pled guilty in reliance of his attorney’s advice
that he did not have to worry about deportation consequences because
he had lived in the U.S. for such a long period of time. 15 However,
due to the set up of immigration laws and regulations in the U.S.,
Padilla unfortunately initiated his own mandatory deportation
proceedings when he pled guilty. 16 Padilla’s plea agreement provided
that he serve five years of his ten-year sentence, followed by a 5-year
probationary period, after which his life as a lawful permanent
resident in the U.S. would come to an end. 17 The petitioner appealed
and alleged that his Sixth Amendment constitutional right was denied
because of ineffective assistance of counsel, as “he would have

consequence is one that is not related to the length or nature of the sentence
imposed on the basis of the plea. Applying this definition, we hold that potential
deportation is a collateral consequence of a guilty plea.”).
12
See People v. Cozo, 746 P.2d 523 (Colo. 1987) (holding that, unlike most courts,
criminal defense counsel may be required to investigate relevant immigration law
and advise non-citizen clients of potential deportation consequences of guilty pleas
to avoid facing ineffective assistance of counsel claims).
13
Padilla, 130 S. Ct. at 1482 (“[A]dvice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel.”).

14
Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008).
15
Padilla, 130 S. Ct. at 1476.
16
See Id. at 1478.
17
Padilla, 253 S.W.3d at 483.
 107

insisted on going to trial if he had not received incorrect advice from

his attorney.” 18 The issue addressed by the U.S. Supreme Court was
whether, under federal law, defense counsel had a duty to advise his
non-citizen client of potential immigration consequences when
pleading guilty to a crime. 19 The Court held that competent counsel
should inform non-citizen clients of automatic deportation
consequences. 20
Although the Court’s holding was ultimately correct, the court
failed to advise and set out a definite and clear standard for guidance
on how to remedy the problem of ineffective assistance of counsel in
connection with U.S. immigration issues, specifically as to
deportation consequences. Moreover, if the number of deportations
continue to rise because of ineffective assistance of counsel, Congress
may need to intervene once again to reinstate the former judicial
recommendation against deportation mechanisms. Thus, U.S.
immigration law remedies are necessary so that lawyers, whether
having practiced law for years or days, can avoid legal malpractice
because of ineffective assistance of counsel.
An effective solution for any issue is one that starts at the root
of the problem presented. The heart of Padilla revolves around
effective assistance of counsel 21 -- as mandated and set out in the
Sixth Amendment of the U.S. Constitution. 22 The Sixth Amendment
states that the accused shall have the assistance of counsel for his
defense 23 and the U.S. Supreme Court has held that “it had long been

18
Padilla, 130 S. Ct. at 1478.
19
Id.
20
Id.
21
Padilla, 130 S. Ct. at 1473.
22
U.S. CONST. amend. VI.
23
Id. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy
and pubic trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defense.”).
 108

recognized that such right to counsel is the right to effective

assistance of counsel.” 24 Therefore, in cases similar to Padilla (i.e.,
cases dealing with non-citizens charged with criminal convictions), a
criminal defense attorney must inform the accused of possible
immigration consequences for his or her assistance to be up to par
with the standards set out in the Sixth Amendment. It is imperative
that counsel has some basic knowledge of immigration law if he or
she is to represent the non-citizen defendant in a criminal court
effectively. Such knowledge includes, but is certainly not limited to,
the fact that certain categories of crimes have different definitions and
meanings under immigration law, 25 that pleading guilty to a crime
may have irreparable deportation consequences, 26 and that
immigration law has its own unique vocabulary terms. 27
The U.S. Supreme Court’s holding in Padilla is paramount
because it will change the way non-citizens charged with crimes are

24
McMann v. Richardson, 397 U.S. 759, 771 (1970) (citing Reece v. Georgia, 350
U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v.
Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)).
25
See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000) (The court held that the
non-citizen’s conviction for possession of drug paraphernalia under the Arizona
Criminal Code was a conviction for a violation of a law relating to a controlled
substance. Since the conviction fell into that category (i.e. controlled substance),
pursuant to the Immigration and Nationality Act and Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, such terminology removed the court’s
jurisdiction and the non-citizen’s due process and fundamental fairness arguments
could not even be addressed, even though he was charged with a crime.); see also
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §
440(d), 110 Stat. 1276, 1277 (1996); see also 8 U.S.C. § 1182(c) (repealed 1996).

26
Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing INS v. St. Cyr, 533
U.S. 289, 296 (2001) (referring to the Attorney General’s authority to grant
discretionary relief from deportation -- an authority that had been exercised to
prevent the deportation of over 10,000 non-citizens during the 5-year period prior to
1996).
27
See Rosenberg v. Fleuti, 374 U.S. 449, 451-53 (1963) (referring to the Court’s
elaboration and definition of the term “entry” for immigration law purposes).
 109

treated procedurally 28 and will consequently raise the bar for criminal
defense attorneys representing non-citizens in a court of law. In order
to understand the outcome surrounding a case of first impression and
its prevalent impact, it is important to understand the history behind
the present. Thus, part two of this writing delineates a historical
overview of immigration law in the U.S. and illustrates the
connection and importance of immigration law relative to the Sixth
Amendment’s right of effective assistance of counsel. Part three
presents a case recitation of Padilla, including the facts and
procedural history. Part four sets forth an analysis of the Court’s
opinions (majority, concurring, and dissenting). Part five suggests
some possible solutions and critiques that the Padilla holding might
achieve. Finally, part six provides a brief summary of the main points
set forth in this writing.

II. HISTORICAL OVERVIEW

History: “The Beginning is the Most Important Part of the Work” 29

In order to grasp a full understanding of the current intricate

immigration laws in the U.S., one must first comprehend their history.
History not only helps to inform us as to how the immigration laws
were formulated, but also helps us to comprehend immigration law as
it stands today. As the following cases demonstrate, immigration
concerns arose many years ago and the progress towards equal
procedural due process for non-citizens has moved at a glacial pace.
Before 1875, there were no federal immigration laws in the
U.S. 30 In fact, minimal and minute immigration regulations were

28
VanGilder, supra note 10, at 796 (“[B]ecause immigration consequences have
often been deemed indirect collateral consequences of plea bargains, rather than
‘direct consequences,’ many courts have held that failure to advise a non-citizen
criminal defendant of possible deportation consequences does not constitute
ineffective assistance of counsel.”).
29
THE QUOTATIONS PAGE, http://www.quotationspage.com/quote/24207.html (last
visited Mar. 15, 2011) (quoting Plato).
30
Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875),
93 COLUM. L. REV. 1833, 1844 (December 1993).
 110

viewed only at the colonial and state levels. 31 Thereafter, a

prohibition of convict immigration was set out in a federal statute
restricting European immigration. 32 As a result, Congress passed the
Act of Mar. 3, 1875, 33 a statute that barred “convicts and prostitutes
from entering the country.” 34 Shortly thereafter, the courts reluctantly
began to get involved because they felt that immigration issues fell
onto the lap of Congress. 35
The first immigration case brought before the courts was Chae
Chan Ping v. United States wherein a Chinese laborer who legally
resided in the U.S. left the U.S. for a visit to China, but before his
departure, obtained a certificate entitling him to return and re-enter
the U.S. 36 However upon his return, the Chinese laborer was
forbidden from entry on the sole ground that Congress approved a law
during his absence that annulled any certificates entitling Chinese
laborers to re-enter the U.S. 37 In Chae Chan Ping, the court held that
“[t]he government, possessing the powers which are to be exercised
for protection and security, is clothed with authority to determine the

31
Id.
32
Id.
33
Id. (stating that the Act of Mar. 3, 1875, excluded persons from legally entering
into the U.S. who were sentenced and convicted in their own countries of felonious
crimes).
34
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (referring to Act of Mar. 3,
1875).
35
Fong Yue Ting v. United States, 149 U.S. 698, 713-14 (1893) (“The power of
Congress, therefore, to expel, like the power to exclude aliens, or any specified
class of aliens, from the country, may be exercised entirely through [its] executive
officers . . . [Therefore][,] Congress, having the right, as it may see fit, to expel
aliens of a particular class, or to permit them to remain, has undoubtedly the right to
provide a system of registration and identification of the members of that class
within the country, and to take all proper means to carry out the system which it
provides.”).
36
Chae Chan Ping v. United States, 130 U.S. 581, 581 (1889).
37
Id.
 111

occasion on which the powers shall be called forth . . . .” 38

Essentially, the court’s view was that the government, pursuant to the
sovereign powers delegated by the U.S. Constitution, 39 could exclude
whomever it deemed necessary for the security and protection of U.S.
borders at any time it determined such security was at risk or
reasonably at risk, so long as, when in the judgment of the
government, the interest of the country required it. 40 Therefore, in the
era of Chae Chan Ping, non-citizens had few rights and limited
constitutional protections, even if they were at some point approved
to be on U.S. soil. As a result, once a non-citizen left the country, the
government had the power to prohibit him or her from legal entry
back into the U.S.
A couple of years later, the Court declared that deportation
proceedings for non-citizens found inside the U.S. were civil
matters. 41 It is evident that, at that time, the Court did not want
deportation proceedings viewed as criminal matters because non-
citizens would then be entitled to U.S. constitutional protections, 42
specifically those found in the Fourth, Fifth, Sixth, and Eighth
Amendments. The court held that an order of deportation is “not [a]
punishment for crime [but is] a method of enforcing the return to [a
non-citizen’s] own country . . . .” 43 The court further reasoned that
the non-citizen “has not . . . been deprived of life, liberty, or property
without due process of law; and the provisions of the Constitution
securing the right of trial by jury, and prohibiting unreasonable
searches and seizures, and cruel and unusual punishments, have no

38
Id. at 606.
39
Id.
40
Id. at 606-07.
41
Fong Yue Ting v. United States, 149 U.S. 698, 728-29 (1893); see also Simpson,
supra note 2, at 490 (“[D]eportation is not considered punishment, but is merely an
administrative action determining a noncitizen’s right to remain in the United
States.”).
42
Fong Yue Ting, 149 U.S. at 730.
43
Id.
 112

application” 44 since the issue is civil and not criminal. After the
decision rendered in Fong Yue Ting, Congress, in its exercise of
plenary power, refrained from giving non-citizens procedural due
process rights 45 because such “proceeding before a United States
judge . . . is in no proper sense a trial and sentence for a crime or
offense.” 46 This view was held by the courts even though the non-
citizens in question were residing inside U.S. perimeters for several
years, had established their U.S. domiciles, and/or had cemented their
families in the U.S. 47 For those non-citizens that had developed such
extensive ties in the U.S., spending the rest of their lives in exile is a
reality “often difficult to reconcile with the view that deportation is
not punishment.” 48
However, in 1896, the judiciary was faced with an
immigration issue that questioned its previous holding -- that non-
citizens had no constitutionally afforded procedural rights when faced
with charges in a U.S. court of law. 49 In Wong Wing v. United States,
the issue before the court was whether Congress could promote its
policy “[t]hat any such Chinese person or person of Chinese descent,
convicted and adjudged to be not lawfully entitled to be and remain in
the United States, shall be imprisoned at hard labor for a period of not
exceeding one year, and thereafter removed from the United States . .
.” without a trial by jury. 50 In Wong Wing, the plaintiffs were of
Chinese descent and were found unlawfully inside the U.S. 51 The

44
Id.
45
See 8 U.S.C. § 1229a(b)(4)(A) (“In proceedings under this section, . . . the alien
shall have the privilege of being represented, at no expense to the Government, by
counsel of the alien’s choosing who is authorized to practice in such proceedings.”).
46
Fong Yue Ting, 149 U.S. at 730.
47
See Shaughnessy v. Mezei, 345 U.S. 206, 206-07 (1953); Padilla v. Kentucky,
130 S. Ct. 1473, 1475 (2010); Chae Chan Ping v. United States, 130 U.S. 581, 581
(1889); Chew v. Colding, 344 U.S. 590, 592-95 (1953).
48
Simpson, supra note 2, at 491.
49
Wong Wing v. United States, 163 U.S. 228, 235 (1896).
50
Id.
51
Id. at 229.
 113

plaintiffs’ mere presence in the U.S. was the criminal offense, so they
were imprisoned and sentenced to “hard labor” for sixty days, and
after serving those sentences, were then ordered to be deported to
China. 52 However, for the first time in the nineteenth century, the
U.S. Supreme Court reversed the decision and ultimately reasoned
that “even aliens shall not be held to answer for a capital or other
infamous crime, unless on a presentment or indictment of a grand
jury, nor be deprived of life, liberty, or property without due process
of law.” 53 After the decision was rendered in Wong Wing, the
judiciary began to show a sense of equality towards non-citizens by
affording them some forms of procedural due process rights.

Background and Development: Congress Shows that Power Has No

Limits
Just as the wheels of equality began to progress for non-
citizens found in the U.S., Congress passed the Immigration and
Nationality Act of 1917, which brought about “radical changes” for
immigration law. 54 To begin, “Congress made classes of non-citizens
deportable based on conduct committed on American soil.” 55 The
Act also “authorized the deportation of any alien sentenced to
imprisonment for a term of one year or more” if such conviction
involved a crime of moral turpitude 56 and was “committed within five
years after entry to the U.S.” 57 Moreover, Section 19 of the Act

52
Id.
53
Id. at 238.
54
Padilla v. Kentucky, 130 S. Ct. 1473, 1478-79 (2010).
55
Id. at 1479.
56
Id. at 1479 (noting that Congress has failed to define with specificity the term
“moral turpitude”); see also Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (citing
Forbes v. Brownell, 149 F.Supp. 848, 849 (D.C.1957) (“Whether a crime involves
moral turpitude depends upon the inherent nature of the crime, as defined in the
statute concerned . . .”); see also Simpson, supra note 2, at 492 (“What constitutes a
crime involving moral turpitude is unclear, and Congress provides little guidance.
Defining a crime of moral turpitude entails more of a moral or ethical conclusion.”).
57
Padilla, 130 S. Ct. at 1479.
 114

rendered deportable any non-citizen who committed “two or more

crimes of moral turpitude at any time after entry.” 58 Congress’ failure
to statutorily define “moral turpitude” affected the status of non-
citizens because it rendered most non-citizens charged with crimes
deportable or inadmissible. 59 This was problematic because the
classification of such crimes became “judgment calls regarding the
morality, not the legality of criminal behavior.” 60 This led to a lack of
uniformity regarding exactly which crimes were considered crimes of
moral turpitude. 61 Thus, it is evident that during that time there was
an increased criminalization of immigration law that affected the
outcome for non-citizens charged with crimes. 62
Ironically, this Act also minimized the risk of unjust
deportation because it allowed judges to make recommendations on
deportation proceedings. This was also referred to as Judicial
Recommendation Against Deportation (hereinafter, “JRAD”). 63 In
JRAD proceedings, sentencing judges in both state and federal
prosecutions had the power to make a recommendation during the
sentencing phase, or within thirty days thereafter, that “such alien
shall not be deported.” 64 Once a recommendation was made by the
sentencing court, “[t]hose in charge of the deportation process,

58
Id.
59
Simpson, supra note 2 at 500.
60
Id. at 501.
61
Id.
62
Simpson, supra note 2, at 500 (“In 1917, Congress passed legislation that made
the conviction of crimes involving moral turpitude both a ground for exclusion and
a ground for deportation from the United States.”).
63
Padilla, 130 S. Ct. at 1479; see also Haller v. Esperdy, 397 F.2d 211, 212 (1968)
(stating that 8 U.S.C.A. § 1251(b)(2) offered “sentencing judge a chance to
ameliorate the harsh sanction of deportation . . . .”).
64
Padilla, 130 S. Ct. at 1479; see also Simpson, supra note 2, at 502 (“JRAD
allowed noncitizens to request that the judge of the criminal court issue a binding
recommendation that the criminal conviction be construed by an immigration judge
as not triggering removal from the United States.”).
 115

[including] the immigration judge, the INS [and] the Attorney

General, [were] . . . simply not allowed to use the conviction as a
basis for deportation.” 65 Such judicial recommendation helped
prevent automatic deportation because even if a non-citizen was
charged with a deportable offense, the presiding judge retained
discretion to ameliorate unjust results. 66 JRAD helped non-citizens
remain in the U.S., since “there was no such creature as an
automatically deportable offense.” 67
Thereafter, Congress passed the Immigration and Nationality
Act of 1952 that replaced and roughly paralleled the 1917 Act by
“granting the Attorney General broad discretion to admit excludable
aliens”, 68 provided that the non-citizen had established his residency
in the United States for at least seven years. 69 Section 212(c) of the
1952 Act allowed non-citizens to apply for discretionary waivers of
deportation, 70 as it afforded the courts the authority to weigh the
equities of the case when rendering decisions to grant deportation. 71
Such extension of deportation relief had great practical importance for
non-citizens facing deportation because immigration law broadly
defined deportable offenses. 72 Accordingly, for non-citizens charged

65
Janvier v. United States, 793 F.2d 449, 452 (2d Cir. 1986).
66
Id.
67
Padilla, 130 S. Ct. at 1479.
68
INS v. St. Cyr, 533 U.S. 289, 294-95 (2001).
69
See 8 U.S.C. §1182(c) (repealed 1996).
70
St. Cyr, 533 U.S. at 295 (“Like § 3 of the 1917 Act, § 212(c) was literally
applicable only to exclusion proceedings, but it too has been interpreted by the
Board of Immigration Appeals (BIA) to authorize any permanent resident alien with
‘a lawful unrelinquished domicile of seven consecutive years’ to apply for a
discretionary waiver from deportation.”).
71
Sweeney, supra note 4, at 61 (“[I]mmigration judge was to balance the positive
and adverse factors and decide on the record as a whole whether the applicant was
deserving of a positive exercise of discretion.”).
72
St. Cyr, 533 U.S. at 295 (citing that pursuant to 8 U.S.C. § 1227, aliens are
deportable upon conviction of two or more crimes of moral turpitude or for one
 116

with criminal offenses who wished to continue to legally reside in this

country, Section 212(c) relief was vital to their stay. 73 “If relief [was]
granted, the deportation proceeding [was] terminated and the alien
remain[ed] a permanent resident.” 74
Moreover, in 1953, the Supreme Court held that lawful
permanent residents 75 were afforded procedural due process rights. 76
In Kwong Hai Chew v. Colding, the plaintiff was a lawful permanent
resident admitted into the U.S as of January 10, 1945. 77 He was
married to a Native American, resided in New York, served as a
United States Merchant Marine during World War II, and in
November 1950, signed articles of employment after being screened
for employment by the U.S. Coast Guard. 78 He was detained while on
an American merchant vessel in San Francisco. 79 The vessel he was

such crime if committed within five years of entry and resulted in a jail term of at
least one year).
73
Id. at 296.
74
Id. at 295.
75
Kwong Hai Chew v. Colding, 344 U.S. 590, 591-92 (“[A] lawful permanent
resident of the United States . . . is an alien continuously residing and physically
present therein … .”); see also U.S. CITIZENSHIP AND IMMIGR. SERVICES,
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6
d1a/?vgnextoid=070695c4f635f010VgnVCM1000000ecd190aRCRD&vgnextchan
nel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD (last visited March 13,
2011) (“A lawful permanent resident is as any person not a citizen of the United
States who is residing the in the U.S. under legally recognized and lawfully
recorded permanent residence as an immigrant. Also referred to as Permanent
Resident Alien, Resident Alien Permit Holder, and Green Card Holder.").
76
Kwong Hai Chew, 344 U.S. at 596-97 (“It is well established that if an alien is a
lawful permanent resident of the United States and remains physically present there,
he is a person within the protection of the Fifth Amendment. He may not be
deprived of his life, liberty or property without due process of law.”).
77
Id. at 592-95.
78
Id.
79
Id.
 117

excluded from was to be his first voyage with the U.S. Coast Guard. 80
Mr. Chew committed no crime and his detention was based on
“information of a confidential nature.” 81 ”The immigration inspector
ordered him ‘temporarily excluded’, . . . as an alien whose entry was
deemed prejudicial to the public interest.” 82 The plaintiff petitioned
such detention and the Court was asked to determine if a detention,
without notice of any charge against him and without opportunity to
be heard, was legally valid. 83 The wheels of equality progressed once
again when the Court held that lawful permanent residents “from a
constitutional point of view were entitled to due process.” 84 The court
reasoned that lawful permanent residents were protected under the
Fifth Amendment, that they could not be detained without being
informed of the charges against them, and that they must be afforded
a hearing sufficient to satisfy due process requirements. 85 Therefore,
the decision in Kwong Hai Chew illustrates that the courts viewed
lawful permanent residents as citizens with constitutional due process
rights. 86 Equality was illustrated as lawful permanent residents
became entitled to the opportunity to be heard before a judge once
charged with a crime. 87
But alas, the slight progression of equality for non-citizens
facing criminal procedures came to a halt in 1996 when Congress
passed the Antiterrorism and Effective Death Penalty Act
80
Id.
81
Id.
82
Id. at 594-95.
83
Id.
84
Id. at 598.
85
Id. at 602-03.
86
Id. at 598-99.
87
Id. at 600-01 (“From a constitutional point of view, [an alien] is entitled to due
process without regard to whether or not, for immigration purposes, he is to be
treated as an entrant alien . . .[;] [h]is status as a person within the meaning and
protection of the Fifth Amendment cannot be capriciously taken from him.”).
 118

(hereinafter, “AEDPA”) 88 and the Illegal Immigration Reform and

Immigration Responsibility Act (hereinafter, “IIRIRA”) 89. 90 These
acts stiffened immigration laws for aggravated felonies by
prospectively eliminating the Section 212(c) relief previously
afforded 91 and by expanding the class of crimes that would fall under
aggravated felonies. 92 By the passage of these acts, Congress
eliminated the Attorney General’s authority to grant discretionary
relief from deportation, an authority that, as previously mentioned,
had been exercised to prevent deportation. 93 In general, if a non-
citizen committed a removable offense after the 1996 effective date,
removal proceedings were practically inevitable. 94 The “cancellation

88
See Simpson, supra note 2, at 506. The passage of the AEDPA was actually
rooted in an act of domestic terrorism, the Oklahoma City Bombings of 1995. This
Act greatly expanded the class of crimes known as aggravated felonies, which
affected immigration deportation concerns. Senator Kennedy commented during
the wake of the passage of the AEDPA that such amendment “virtually eliminates
the Attorney General’s flexibility to grant discretionary relief from deportation for
long-time permanent residents convicted of lesser crimes . . . [t]hey could live here
productively for thirty years and have an American wife and children. But for
them, it is one strike and you are out.”
89
See Simpson, supra note 2, at 504. IIRIRA lowered the requisite term of
imprisonment for “crimes of violence” from five years to one year. Accordingly,
this allowed for many crimes that would be characterized as misdemeanors to
qualify as a crime of violence if a possible sentence of imprisonment for one year
could be imposed. Another harsh consequence of IIRIRA is that its amendments
are implemented retroactively, making a person deportable regardless of when the
crime occurred. See also Lonegan, supra note 5, at 60 (stating that IIRIRA
eliminated § 212(c) relief and replaced it with a new form of relief called
“cancellation of removal”).
90
Sweeney, supra note 4, at 65.
91
Id.
92
Lonegan, supra note 5, at 60.
93
Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing INS v. St. Cyr, 533
U.S. 289, 295-96 (2001)).
94
Id.
 119

of removal statute” espoused by IIRIRA created two additional

statutory bars to prevent lawful permanent residents from seeking any
form of deportation discretion, including the commission of an
aggravated felony and the commission of minor offenses within seven
years of arrival. 95 The clear lack of judicial flexibility back-tracked
non-citizens’ rights and it appeared that non-citizens were back to the
judicial times of Chae Chan Ping and Fong Yue Ting.
The aforementioned cases illustrate that the U.S. Congress
historically kept going back-and-forth on its immigration policies.
The holdings ranged from the enforcement of harsh policies to lenient
guidelines, and from judicial discretion on deportation to mandatory
deportation. At its commencement, immigration law was very narrow
and straight-forward. Earlier cases proved such by concluding that
the U.S. could exclude and deport non-citizens at will. Thereafter, the
history of the immigration timeline evidenced a drastic and dramatic
evolution. Once AEDPA and IIRIRA were passed in 1996, it
appeared that the movement towards equal rights for immigrants
came to a halt. The courts deported individuals regardless of familial
ties, U.S. based employment, and/or their length of stay in the U.S. 96
Tens of thousands of non-citizen criminal defendants have been
removed from the U.S. since then. 97 For example, in 1986 alone, the
annual rate at which the U.S. deported non-citizens because of
criminal convictions rose from 1,978 to over 88,000 in 2005. 98
History allows one to conclude that the “United States now has a two-
tiered system of criminal justice, in which lawful permanent residents

95
Lonegan, supra note 5, at 61.
96
Sweeney, supra note 4, at 49 (“Immigration authorities deported tens of
thousands of lawful permanent residents . . . [and] for those with spouses and
children in this country, the consequences of removal were far more severe than the
terms of criminal sentences. However, courts have consistently held that removal is
not punishment for crime but is instead a remedial civil sanction and a collateral,
rather than a direct, consequence of a conviction.”).
97
VanGilder, supra note 10, at 793.
98
Lonegan, supra note 5, at 57.
 120

are punished far more harshly than their citizen counterparts for even
the most trivial offenses.” 99

Nexus between Immigration Law and the Sixth Amendment’s Right to

Counsel

Immigration concerns were brought to the courts’ attention in

1889 when the courts decided Chae Chan Ping. To date, immigration
concerns continue in the courts as, most recently, the U.S. Supreme
Court handed down a monumental decision in Padilla, which granted
immigrants the right to effective assistance of counsel. 100 As a result,
counsel must now inform clients of potential immigration
consequences.
Historically, courts held that removal proceedings were
regarded as wholly civil in nature and thus deportations were not
viewed as punishment or a form of criminal sanctions. 101 As a result,
one could conclude that former immigration law did not consider
serving a criminal sentence and deportation to be a form of double
jeopardy. However, the court in Padilla recognized that deportation
is in fact a severe penalty and is “nevertheless intimately related to
the criminal process.” 102 Before Padilla, a desperate need for
effective assistance of counsel existed due to the legislation that was
in place for non-citizens convicted of crimes. 103 Therefore, the

99
Id. at 57-58.
100
Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010) (“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.”); see also VanGilder, supra note 10, at
838 (“Adequate advice in a criminal proceeding may make a cognizable difference
in deportation proceedings by making non-citizens who are facing removal better
equipped to face the immigration judges who will seal their fate. Requiring defense
counsel to advise a non-citizen criminal defendant, like Mr. Padilla, of the
immigration consequences of a guilty plea is an important step toward protecting
the defendant's Sixth Amendment right to effective assistance of counsel.”).

101
Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).
102
Id.
 121

decision handed down in Padilla helped to prove that deportation is in

fact such a dire consequence that more protections are necessary, 104
specifically the right to effective assistance of counsel as set out in the
Sixth Amendment of the U.S. Constitution. 105

III. CASE RECITATION

Background and Procedural History

Petitioner Jose Padilla, a native of Honduras, became a lawful

permanent resident of the U.S. over forty years ago. 106 “Padilla
served this nation with honor as a member of the U.S. Armed Forces
during the Vietnam War.” 107 Padilla contended that he lived with his
family in California. 108 In September 2001, Padilla, a licensed
commercial truck driver, was arrested in Kentucky for charges of
operating a tractor/trailer without a weight and distance tax number
and for transporting marijuana. 109 He was subsequently indicted for
the same offense in October 2001. 110 Pursuant to the laws of the state
of Kentucky, the transportation charge rendered an indictment for
103
Id. at 1480 (“[C]hanges to our immigration law have dramatically raised the
stakes of a non-citizen’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 -- of the penalty that may be
imposed on noncitizen defendants who plead guilty to specified crimes.”).
104
Id.
105
U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall have the
Assistance of Counsel for his defense.”).
106
Padilla, 130 S. Ct. at 1477.
107
Id.
108
Brief of Petitioner at 8, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-
651).
109
Id.
110
Id.
 122

three charges: 1) trafficking of the drug, 2) possession of the drug;

and 3) possession of drug paraphernalia. 111 Initially, Padilla pled not
guilty and was released on bond. 112 Subsequently, Padilla moved,
under the advice of his counsel, to enter a guilty plea on the drug-
related charges in exchange for a dismissal of the non-drug related
charge and a total sentence of ten yearss. 113 On October 4, 2002, the
trial court entered the judgment convicting Padilla of the drug-related
charges. 114 After entering his plea, Padilla was faced with deportation
from the U.S. 115
On August 18, 2004, Padilla filed a pro se motion in the
Hardin County Circuit Court for post-conviction relief, alleging
ineffective assistance of counsel. 116 Specifically, Padilla noted that
his counsel was required to investigate possible deportation
consequences and that his counsel’s wrongful advice on the
deportation consequences of his plea without investigation of those
consequences constituted ineffective assistance of counsel. 117 Padilla
claimed he was misadvised by his attorney on the deportation
consequences of his plea. 118 Padilla told the Court that when he asked
his court appointed attorney about his immigration status, his
attorney’s response was that he should not worry about it because he
had lived in the U.S. long enough. 119 Thus, Padilla relied on his

111
Id.
112
Id.
113
Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008) (“the plea
agreement provided that Padilla would serve five years of his ten year sentence and
would be sentenced to probation for the remaining five years.”).
114
Id.
115
Padilla v. Kentucky, 130 S. Ct. 1473, 1477 (2010).
116
Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008).
117
Brief of Petitioner, supra note 107 at 11.
118
Id.
 123

counsel’s erroneous advice when he pled guilty to the drug charge

that made his deportation virtually mandatory. 120 He also told the
Court that he would have insisted on going to trial had he not received
faulty and misleading advice from his attorney. 121
The trial court subsequently denied Padilla’s motion, holding
that he did not have to be educated on all possible consequences of
his guilty plea. 122 Padilla then appealed to the Kentucky Court of
Appeals, which reversed and remanded the trial court’s decision,
holding that “although collateral consequences do not have to be
advised, an affirmative act of gross misadvice relating to collateral
matters can justify post-conviction relief.” 123 The Commonwealth of
Kentucky then appealed the ruling to the Kentucky Supreme Court. 124
The Kentucky Supreme Court reversed the appellate decision, holding
that relief was denied to the appellee, Padilla, because “the Sixth
Amendment’s guarantee of effective assistance of counsel did not
protect a criminal defendant from erroneous advice about deportation,
as it was merely a collateral consequence of conviction.” 125 Certiorari
was then granted by the U.S. Supreme Court to decide whether
“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.” 126

119
Id. at 10-11 (referring to the language under 8 U.S.C. § 1101(a)(43)(B),and 8
U.S.C. § 1227(a)(2)(A)(iii) and (B)(i), Mr. Padilla’s felony drug conviction was a
deportable crime because it constituted an aggravated felony as delineated in the
statutes).
120
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).
121
Id.
122
Commonwealth v. Padilla, 253 S.W.3d 482, 482 (Ky. 2008).
123
Id. at 482-83.
124
Padilla, 130 S. Ct. at 1473.
125
Padilla, 130 S. Ct. at 1478.
126
Id.
 124

IV. ANALYSIS

Court’s Analysis

1. Majority Opinion: Taking a Stand

The Court in Padilla held that counsel engaged in deficient

performance by failing to advise the defendant that his guilty plea
made him subject to automatic deportation and that the defendant’s
claim was subject to the Strickland ineffective assistance test, 127 not
only to the extent that he alleged affirmative misadvice, but also to
the extent that he alleged omissions by counsel. 128 The Court also
distinguished between direct and collateral consequences as they
pertained to the “unique nature of deportation.” 129
First, the Court stated that to address the ineffective assistance
of counsel claim, the Strickland test applied. 130 To determine whether
counsel’s performance was in fact deficient (the first prong of the
Strickland test), the Court addressed whether counsel’s
representations fell below an objective standard of care. 131 The Court
looked to the prevailing professional norms that dealt with the
“intersection of modern criminal prosecutions and immigration
law.” 132 It found that the “weight of such professional norms support
the view that counsel must advise [his or] her client regarding the
deportation risk” 133 because deportation is recognized as a harsh

127
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating that to prevail
on a claim of ineffective assistance of counsel relative to a guilty plea, petitioner
must demonstrate that: (1) counsel’s performance was deficient; and (2) the
deficient performance prejudiced his defense).
128
Padilla, 130 S. Ct. at 1473 (majority opinion).
129
Id. at 1476.
130
Id.
131
Id.
132
Id. at 1482.
133
Padilla, 130 S. Ct. at 1482 (majority opinion).
 125

penalty. Moreover, when “the terms of the relevant immigration

statute are succinct, clear and explicit in defining the removal
consequence” for a conviction, and a simple reading of the
immigration statute could have easily been determined, the duty to
give such correct advice is equally clear. 134 Not surprisingly, the
Court reasoned that, “advice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel.” 135
Thus, Padilla’s attorney failed to provide effective assistance of
counsel, thereby depriving Padilla of his constitutional right to
effective assistance of counsel. Since the petitioner sufficiently
alleged constitutional deficiency to satisfy the first prong of
Strickland, the Court left the second prong for consideration by the
Kentucky courts. 136
Moreover, the Court made it clear that it was stepping in to
make a decision because a trend towards non-citizens being convicted
of crimes with a lack of procedural due process rights had become
evident. 137 Before the passage of several legislative acts, non-citizens
had protections, whereas now, there are virtually none. 138
Specifically, the Court defended its holding by proclaiming that,
“[w]hile 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

134
Id. at 1483.
135
Id. at 1482.
136
Id. at 1483-84.
137
Id. at 1476; see also VanGilder, supra note 10, at 794 (“In 2005 alone, 40,018
aliens were removed from the United States for criminal violations. That number
accounts for approximately nineteen percent of the 208,521 total removals in
2005[,] but does not include aliens who are criminals and are removed under a
different administrative reason for the convenience of the government. The
Department of Homeland Security estimates that it removed 89,406 total criminal
aliens from the United States in 2005, which accounts for forty-three percent of the
total removals in 2005.”).

138
Padilla, 130 S. Ct. at 1476 (majority opinion).
 126

deportation’s harsh consequences.” 139 Accordingly, the decision

rendered reflects the Court’s awareness of a need to intervene because
of the injustice towards non-citizens. The Court espoused that it is
“responsibl[e], under the Constitution, to ensure that no criminal
defendant – whether a citizen or not – is left to the ‘mercies of
incompetent counsel.’” 140
The Court also advised that its decision did not necessarily
recommend that immigration law advice is required in every instance,
especially where the law is not succinct and straightforward. 141 It
pointed out that only where “the terms of the relevant immigration
statute are succinct, clear and explicit in defining the removal
consequence for . . . conviction,” is adequate advice necessary. 142 The
court concluded that in Padilla’s case, the deportation consequence of
his plea was clear from a mere reading of the relevant immigration
law statute. 143
The Court also asserted that deportation, although civil in
nature, is a severe penalty intimately related to the criminal process
and that, due to the constant changes in immigration law, non-citizen
defendants facing a risk of deportation for a particular offense find it
even more difficult to “divorce the penalty from the conviction in the
deportation context.” 144 Accordingly, removal proceedings make it
uniquely difficult to classify deportation as either a direct or collateral
consequence. 145 Due to the intricacy between deportation and

139
Id.
140
Id. at 1486.
141
Id. at 1483.
142
Id.
143
Padilla, 130 S. Ct. at 1483 (majority opinion) (noting that 8 U.S.C. §
1227(a)(2)(B)(i) clearly states that an alien who at any time after admission into the
U.S. has been convicted of a violation of any law or regulation of a State 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).
144
Id. at 1482.
145
Id. at 1476.
 127

criminal law proceedings, the Sixth Amendment right to counsel for

non-citizens facing criminal charges is extremely important because
deportation is the equivalent of banishment or exile. 146 This
exemplifies the critical need for counsel to inform non-citizen
client(s) of the risk of deportation when entering a guilty plea. 147
In a brief on behalf of the United States as Amicus Curiae, the
Solicitor General argued that Padilla’s claim should only be valid if
he was given affirmative misadvice. 148 The Court countered this
argument by explaining that a holding limited to affirmative
misadvice would not help defendants being represented by counsel
because it would encourage criminal defense attorneys to remain
silent on important legal matters, “even when answers are readily
available.” 149 In essence, the Court summarized that “there is no
relative difference between an act of commission and an act of
omission in this context.” 150

2. Concurring Opinion: The Complexity Remains

In the concurring opinion, Justice Alito agreed with the

majority that criminal defense counsel must provide effective
assistance to their clients and not mislead them on deportation
consequences. 151 Justice Alito also opined that immigration law is too
complex and difficult to understand for criminal defense attorneys not
specialized in immigration law. 152 Because of immigration law
complexities, however, he disagreed with the majority that a criminal
defense attorney must attempt to explain the possible immigration

146
Id. at 1484.
147
Id.
148
Padilla, 130 S. Ct. at 1484 (majority opinion).
149
Id.
150
Id.
151
Id. at 1487 (Alito, J., concurring).
152
Id.
 128

consequences that might arise from a criminal conviction. 153 The

concurrence also reasoned that “nothing is ever simple with
immigration law – including the determination [of] whether
immigration law clearly makes a particular offense removable.” 154
Moreover, the concurrence stated that the longstanding and
unanimous position of the federal courts, until Padilla, had always
been that reasonable defense counsel generally need only advise their
client about the direct consequences of criminal convictions. 155
Furthermore, the concurrence believed that the burden the
majority wanted to impose on criminal defense counsel was too
great. 156 The concurrence listed the following four reasons as to why
this particular approach is problematic:
1) the statutes will not always be succinct, clear, and
explicit; 2) defendants are likely to be misled if they
are under the impression that counsel must provide
advice regarding only one of the many collateral
consequences; 3) the court’s rigid approach could be
softened by the use of a standard form given to non-
citizen defendants and/or trial judges taking on the
authoritative role of informing the non-citizen
defendants of the direct and collateral consequence of
entering a guilty plea; and 4) expanding the scope of

153
Padilla, 130 S. Ct. at 1487-88 (Alito, J. and Roberts, J., concurring) (“Criminal
defense attorneys are not expected to possess-and very often do not possess-
expertise in other areas of the law, and it is unrealistic to expect them to provide
expert advice on matters that lie outside their area of training and experience.”).
154
Id. at 1490.
155
Id. at 1487.
156
Id. at 1490 (noting that the scope of counsel’s duty to offer advice concerning
deportation consequences may turn on how difficult it is to determine those
consequences as severe; the Court tries to downplay the burden by its instruction
that if the terms of the relevant immigration statute are succinct, clear and explicit
in defining removal consequences, then counsel has an affirmative duty to inform
the client; however, when the law is not succinct, clear and explicit, nothing more is
required than to inform the client that pending criminal charges may carry a risk of
adverse immigration consequences).
 129

criminal defense counsel’s duties under the Sixth

Amendment was not based on proper similarities. 157

3. Dissenting Opinion: The Birth of the Padilla Warning

In his dissent, Justice Scalia argued that, by the Court making

the issue at hand a constitutional issue, there remained no opportunity
for any legislative possibility of amending the decisions that were
handed down. 158 His opinion expressed that “the Constitution . . . is
not an all-purpose tool for judicial construction of a perfect world;
and when [courts] ignore its text in order to make it that, we find
ourselves swinging a sledge where a tack hammer is needed.” 159
Furthermore, Justice Scalia stated that the majority provided
no rationale for when the ramifications of collateral consequences
would end. 160 Specifically, he stated that “criminal conviction[s] can
carry a wide variety of consequences other than conviction and
sentencing, including civil commitment, civil forfeiture, the loss of
the right to vote, disqualification from public benefits, ineligibility to
possess firearms, dishonorable discharge from the Armed Forces, and
loss of business or professional licenses . . . ,” all of which are serious
consequences leading to a constitutional slippery slope. 161 According
to Justice Scalia, pursuant to the new-found expansion of the Court’s
definition of constitutionally effective assistance of counsel, counsel
must now warn defendants of potential removal consequences. 162
However, he asserts that Congress is better equipped to handle
matters like these because legislation can specify which categories of
misadvice are relevant; specifically, which collateral consequences

157
Id. at 1490 - 93.
158
Padilla, 130 S. Ct. at 1497 (Scalia, J., dissenting).
159
Id. at 1494.
160
Id. at 1496.
161
Id.
162
Id. (stating that counsel must now provide defendants with a Padilla warning – a
warning referring to potential removal consequences).
 130

counsel must bring to a defendant’s attention and which warnings

must be given. 163

V. SOLUTIONS

Arguments and Possible Solutions: Who Holds the Key?

The legal problem discussed here is that non-citizens charged

and convicted of crimes are faced with, and in all probability will
continue to face, ineffective assistance of counsel because most
attorneys are not familiar with immigration law, specifically the
immigration consequences that arise from a guilty plea. 164 The time
for a solution is long overdue and, like most solutions to any problem,
one must look to the root of the problem in an effort to find a
plausible solution. In this case, the problem of ineffective assistance
of counsel is rooted in legal forums across the U.S. because it is in
such forums that attorneys obtain their substantive legal education.

Proposal 1: Addition of Subject Matter to the State Bar

Immigration law, specifically immigration consequences that

might lead to claims of ineffective assistance of counsel, can be added
as a tested subject on state bar exams, particularly in states where
there are a substantial number of immigration cases. The presence of
such subject matter on state bar exams will induce law school
students to gain basic fundamental knowledge about immigration
consequences that might arise at deportation proceedings. Students
may elect to take advantage of an immigration law course during their
attendance at law school or during their bar exam study before taking
the state administered bar exam. Either way, students will at least
have some background on the effects of ineffective assistance of
counsel in connection with immigration consequences.

163
Id.
164
Padilla, S. Ct. at 1476 (“In post conviction proceedings, [Padilla’s counsel] . . .
told [Padilla] not to worry about deportation since he had lived in this country so
long.”).
 131

An illustrative model of this proposal is the inclusion of

Indian law to the New Mexico state bar exam. 165 “In 2002, New
Mexico became the first state to place Indian law on its state bar exam
. . .” 166 in response to the lack of Indian law competency among New
Mexico licensed attorneys. 167 Attorneys practicing in New Mexico
found it common to inadvertently experience Indian law issues in
their respective cases; however, some lacked awareness of its
complexity. 168 Although some attorneys were knowledgeable about
Indian law, because of its “inconsistency, non-uniformity and recent
United States Supreme Court decisions,” they found themselves faced
with more questions than answers. 169 In fact, most answers to Indian
law issues often contained “conditioners and situational contexts.” 170
Therefore, due to the lack of licensed attorneys who were competent
and knowledgeable about Indian law, the hardships faced by low
income Indians in need of representation were exacerbated. 171
Accordingly, the University of New Mexico - School of Law decided
to take action as a result of the social and political history regarding
American Indians and because it was the only law school in the

165
Gloria Valencia-Weber & Sherri Nicole Thomas, When the State Bar Exam
Embraces Indian Law: Teaching Experiences and Observations, 82 N.D. L. REV.
741, 743 (2006).
166
Id. (“This decision made basic knowledge of Indian law part of the competency
expected of all licensed attorneys.”).
167
Id. at 750.
168
Id. at 749 (“While it is common for attorneys to bump into Indian law issues in
the course of handling matters such as contracts, family law, natural resources, and
water law, many lack formal study of Indian law.”).
169
Id. at 749-50 (referring to licensed attorneys showing up at the University of
New Mexico law library and asking librarians to assist them in finding answers to
the complexity of Indian law).
170
Id. at 750.
171
Id. (“[T]he major pro-bono project to provide guardians at litem for children did
not include Indian children because the organization and its staff lacked expertise in
the Indian Child Welfare Act.”).
 132

state. 172 Although it might seem that the addition of a subject to a

state bar might take a lot of time, the project to place Indian law on
the New Mexico state bar was completed in seven months. 173
The history of Indian law at New Mexico’s law school created
a supportive environment within the bar and from the citizens of New
Mexico. 174 After viewing this addition as a success, the state of
Washington has succeeded in becoming the second state to add
American Indian law on its state bar exam. 175 Other states with high
American Indian populations are currently considering its addition as
well. 176 The facts presented relative to the inclusion of Indian law
sound strikingly similar to the current immigration law dilemma. As
a result, the point is clear. If an attorney practices in an area that is
prevalent to certain legal issues, he or she should be competent in that
area of law so that they can adequately and effectively represent their
client.

Proposal 2: Mandatory CLE Certification in Exchange for Court

Appointments (for Practicing Attorneys)

Another possible solution for eliminating ineffective

assistance of counsel in the immigration law sector would be to

172
Id. at 743.
173
Id. at 751-52 (illustrating that during the seven month time period, the inclusion
of Indian law on the New Mexico state bar was achieved by the following seven
steps: 1) project request was made to the New Mexico Native American Bar
Association; 2) research for the project began; 3) a proposal was drafted to include
Indian law as a New Mexico bar exam subject; 4) project leaders secured support
from attorneys all over the state; 5) the proposal was then presented to the New
Mexico State Board of Bar Examiners; 6) the Board rendered its vote; and 7) on
February 28, 2002, the New Mexico Supreme Court approved the inclusion of
Indian law on the state bar exam).
174
Id. at 753.
175
Id.
176
Id. at 754 (referring to Arizona, Oklahoma, Wisconsin, Montana, Oregon, Idaho
and California as states with bar leaders that are considering the addition of Indian
law onto their respective state bar exams).
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enforce a mandatory Continuing Legal Education (hereinafter,

“CLE”) or certification class via state law. This option is available
for practicing attorneys unable to reap the benefits of taking an
immigration law class during their enrollment in law school. Such
mandatory certification would primarily be tailored for attorneys
receiving state court appointments in jurisdictions where a licensed
attorney must first register with the courts in order to receive the state
court appointments. 177 For example, in regions where sizeable
immigrant populations exist, there are already licensed and practicing
attorneys whose practice is primarily based on receiving state court
appointments on a daily basis. 178 Although their practice consists of
mainly that, most of those attorneys are uninformed of current
immigration law as they continue to violate Sixth Amendment non-
citizen rights because they fail to inform the non-citizens of
immigration consequences. 179 Accordingly, court appointed cases
dealing with non-citizens charged with crimes should be disbursed to
only those attorneys who have attended immigration law CLE classes
and hold a valid and current CLE certification on immigration law.
The court in Padilla explained that it was not difficult to find
a deficiency in the case because “[t]he consequences of Padilla’s plea
could easily be determined from reading the removal statute . . .” 180
However, if counsel is not familiar with the statute or does not know
where to find it, how can he or she be held responsible for something
that he or she did not know? As illustrated throughout this writing,
immigration law changes very frequently, so counsel must be kept
abreast of where to find research when handling an immigration law
case. Generally, the best idea is to keep counsel informed by making
CLE immigration courses mandatory, especially if counsel chooses to
practice immigration law.

177
Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye
& Quintana, LLP (Jul. 22, 2010).
178
Interview with Elizabeth M. Garcia, Attorney at Law, Willette & Guerra, L.L.P.,
McAllen, Tex. (Jul. 16, 2010) (discussing some of the practices of current counsel
in Hidalgo County located in south Texas).
179
Id.
180
Padilla v. Kentucky, 130 S. Ct. 1473, 1476-77 (2010).
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A starting point for a proper and efficient CLE course would

be to discuss the “basic considerations a criminal defense attorney
must consider when undertaking the representation of any criminal
defendant,” along with immigration consequences, specifically those
of deportation. 181 Also, immigration law nuances available during the
plea-bargaining process would be highlighted during the CLE
seminars. As the court opined in Padilla, “informed consideration of
possible deportation can only benefit both the State and non-citizen
defendants during the plea-bargaining process.” 182 Overall, the point
of immigration CLE courses would be to primarily emphasize that
counsel will likely be held liable for ineffective assistance of counsel
if their non-citizen client is not informed of the proper consequences
associated with taking a guilty plea. A possible legal malpractice
claim could be avoided with the knowledge obtained in an
immigration CLE course.

Proposal 3: Addition to law school curriculum

Currently, immigration law is not a part of the mandatory

curriculum in law schools in states where there are a substantial
number of cases with non-citizens involved, nor is there enough
student awareness on immigration issues. Given the aforementioned
proposals, it would behoove law schools to focus on immigration law
in their curriculums. To date, law school students across the nation
are generally offered immigration law classes as electives. As an
elective, immigration law is often overlooked and not given the
importance it deserves. Most law school students do not know any

181
See, e.g., VanGilder, supra note 10, at 834 (referring to details about CLE
seminars administered in Colorado that address the overlap between immigration
and criminal law).
182
Padilla, 130 S. Ct. at 1486 (“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.”).
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better 183 and usually just take the required courses and choose less
complex legal subjects as their electives. As a result, most students
graduating from law school and entering the legal arena as lawyers
have no clue what to look for when faced with immigration law
issues.
For the most part, handling immigration issues is inescapable
in federal court appointments where there exists a high immigrant
population. 184 Some judicial districts affirm that such federal judicial
appointments must be handled even if an attorney does not specialize
in immigration law. 185 Thus, if law schools were to make
immigration law more prominent by focusing on increasing student
awareness relative to what constitutes ineffective assistance of
counsel, some of the immigration law issues addressed by the courts
might be alleviated. 186 Moreover, law schools located in states with a
substantial number of immigration cases may add an immigration law
class to the law school curriculum. It has become clear that criminal
defense attorneys handling immigration issues need to have some
basic legal knowledge about immigration law. How else could they

183
Ethan J. Leib, Adding Legislation Courses to the First-Year Curriculum, 58 J.
LEGAL EDUC. 166, 175 (2008) (“Sometimes, of course, students don’t know what is
best for their educations . . . [b]ut that doesn’t mean that [these courses] aren’t
critical to good lawyering and that they aren’t foundational courses that students
might be required to take . . .[;] [s]tudents might not vote for Civil Procedure in a
popularity contest of courses, but few really think students shouldn’t get some
grounding in Procedure.”).
184
Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye
& Quintana, LLP (Jul. 22, 2010) (discussing that federal court appointments
(specifically those in Hidalgo County, located in south Texas and a part of the 5th
Circuit) may not be turned down if counsel is licensed to practice in federal court
because his or her name is automatically added to the court’s judicial appointment
rotating system. Such judicial appointments may be challenged by counsel if his or
her person is in danger or if a moral issue arises; however, these are very narrow
exceptions).
185
Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye
& Quintana, LLP (Jul. 22, 2010) (discussing how federal court appointments are
assigned in the south Texas/5th Circuit region).
186
Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010).
 136

possibly know about immigration statutes or codes? The historic lack

of emphasis on the importance and need of immigration law courses
for students who intend to take immigration cases in practice has
resulted in the needless deportation of thousands of non-citizens, 187
violations of constitutional rights, 188 and legal malpractice claims due
to ineffective assistance of counsel. 189
Some opponents to this proposal might claim that the addition
of another mandatory law course is too difficult and cumbersome.
However, change is necessary because the world of law is not
complacent. 190 In fact, other law schools have effectively added
courses to their mandatory curricula because of societal and political
changes. 191 For example, in 2006, Harvard Law School announced a
change to its first year curriculum that added International Law. 192

187
Sweeney, supra note 4, at 47 (“Thousands of long-term legal permanent
residents are removed from the United States each year because they have been
convicted of criminal offenses, many quite minor.”).

188
Janvier v. United States, 793 F.2d 449, 451 (2d Cir.1986) (“It is well established
that a defendant to a criminal prosecution has a Sixth Amendment right to the
effective assistance of counsel at all critical stages of the prosecution where his
substantial rights may be affected, and that sentencing is one such stage.”).
189
Padilla, 130 S. Ct. at 1473 (“Counsel engaged in deficient performance by
failing to advise defendant that his plea of guilty made him subject to automatic
deportation.”).
190
Jonathan D. Glater, Harvard Law Decides to Steep Students in 21st-Century
Issues, N.Y. TIMES, Oct. 7, 2006,
http://www.nytimes.com/2006/10/07/education/07harvard.html?_r=1(quoting Elena
Kagan, former Dean of Harvard Law School, “the world of law has changed . . .
changes in what our students will do and what they will need to know”).
191
See Valencia-Weber, supra note 163, at 750 (discussing the importance of Indian
law competency among New Mexico licensed attorneys); see also Leib, supra note
181, at 169 (discussing Harvard’s inclusion of International Law); see also Molly
Davis, Law School Revises First Year Courses, THE EMORY WHEEL, April 1, 2010,
http://www.emorywheel.com/detail.php?n=28266 (“Changes to the first-year
curriculum include the addition of a required course about legislation and
registration to be taken during the first semester . . .”).
 137

Also, Emory School of Law announced on April 1, 2010, that it too

was going to make a change in the first year curriculum by adding
Legislation and Registration. 193 Such law schools decided to progress
and adhere to the changes in society. Similarly, it is time for
immigration law to be prioritized and added to the law school
curricula, particularly in states with high immigration. Future lawyers
must be introduced to immigration law during their three year
enrollment in law school, specifically the liabilities that will ensue
from ineffective assistance of counsel for non-citizens.

Proposal 4: Reinstatement of JRAD

Moreover, the courts’ decisions on previous immigration

cases illustrates increased criminalization in immigration law and a
lack of judicial flexibility that has resulted in harsh results,
specifically deportation as a consequence of a criminal plea.
Accordingly, this article’s fourth proposal is that Congress restore the
judicial recommendations against deportation procedures, primarily
for lawful permanent residents.
Judges handling cases that involve non-citizens are best
equipped to decide if non-citizen defendants deserve the opportunity
to remain inside the United States after serving their rendered
sentence(s); therefore, deportation decisions should be left to Judges
and not Congress. Such would ensure that immigration judges would
be able to afford a humanized effect on each case. 194 The presiding
judge would render a judicial recommendation against deportation if
the non-citizens could show that they deserved a second chance. 195
Section 212(c) removal relief would again be based on the weight of

192
Leib, supra note 181, at 169 (“Harvard’s inclusion of International Law in the
required first year curriculum has been treated by some as having political and
ideological content.”).
193
Davis, supra at note 189.
194
E.g., Lonegan, supra note 5, at 56 (referring to judge expressing regret for
deporting a lawful permanent resident after being convicted of possession of $5
worth of cocaine, a crime that carried a fine of only $250).
195
Sweeney, supra note 4, at 60.
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the negative factors against the positive factors. 196 Thus, the
immigration judge would again be given the opportunity to “balance
the positive and adverse factors and then decide on the record as a
whole whether the [non-citizen] applicant was deserving of a positive
exercise of discretion.” 197 By instituting such a change, immigration
judges would once again be able to afford each person facing
deportation an individualized and fair opportunity to be heard.

VI. CONCLUSION

Padilla certainly stands as a case of first impression. The

Court in Padilla affirmed that immigrants should not be held
accountable when they rely on incorrect advice from their lawyers or
where counsel fails to provide any immigration advice at all. 198 The
Padilla Supreme Court opinion stated that, under the U.S.
Constitution, no criminal defendant, whether a citizen or not, should
be left to the mercies of incompetent counsel. 199 The significance of
the Padilla holding is that defense counsel now has to inform clients
of possible immigration consequences. The Court stated that changes
to U.S. immigration laws have dramatically raised the stakes of a non-
citizen's criminal conviction and further expressed that providing
accurate legal advice for non-citizens accused of crimes has never
been more important. 200 The right to counsel is at the very core of our
196
Id. at 61 (“Negative factors . . . include the nature and underlying circumstances
of any immigration violation or ground for exclusion [including] the nature and
seriousness of any criminal convictions, [weighed against] family ties in the United
States, residence of long duration, age at entry, hardship to the family or the
applicant if deported, employment history, property, military service, service to the
community, evidence of rehabilitation, and other evidence of good character.”).
197
Id.
198
Padilla, 130 S. Ct. at 1487.
199
Id. at 1493.
200
Id. at 1476.
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criminal justice system, and such constitutionally mandated right is to

be protected and upheld at all times.
The Sixth Amendment guarantees effective assistance of
counsel and those in the legal profession hold the key to providing
that constitutional right. Legal knowledge comes primarily from the
legal forum and legal education arenas. Let us no longer allow one
more immigrant to be deported because of a lack of legal knowledge.
Lawyers have been afforded the right to speak and advocate for
others; therefore, let us not deviate from the beauty of our justice
system: fairness to all.
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