In my most recent article, When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions, 12 Loyola J. of Public Interest Law 299 (2011), I argue that state courts face a steep crimmigration learning curve thanks to Padilla v. Kentucky. Here’s the abstract:
Padilla v. Kentucky’s recognition of deportation consequences as a component of the Sixth Amendment effective assistance of counsel guarantee promised dramatic impact on criminal proceedings involving noncitizen defendants. Realizing this promise depends on courts’ ability to require defense attorneys to provide accurate advice about the deportation consequences of a conviction. Because state courts decide most ineffective assistance of counsel claims, a review of their treatment of Padilla-based claims offers an insightful glimpse into this decision’s impact on criminal representation of noncitizen defendants. This article examines state court decisions from the first six months after Padilla was issued and concludes that state courts’ lack of familiarity with immigration law has manifested itself in a concerning failure to grant Padilla-based relief when attorneys have inaccurately advised defendants about the prospect of deportation.
Because I focused on the first six months after Padilla was issued, this paper is necessarily preliminary. State courts have been dealing with Padilla constantly since then and several appellate courts have issued published decisions. Most of these decisions, however, have been focused on whether Padilla applies retroactively. The question of state courts’—especially trial courts’—ability to successfully navigate the INA’s crime-based provisions in an effort to determine whether a defense attorney accurately advised a client has not featured prominently in the published decisions.
This doesn’t matter much, though, because state trial courts will need to explore the specific crime-based provisions at issue in every ineffective assistance of counsel claim that they hear. In doing this, the argument that I advance in the paper remains key: attorneys need to be cognizant of the fact that trial courts are not familiar with the intricacies of the INA so they need a lot of help determining whether a noncitizen defendant was accurately advised about the deportation consequences of a plea.