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Scholars Sidebar: Padilla’s inapplicability to undocumented and non-immigrant visitors

There is no doubting that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), recognizing that the Sixth Amendment right to counsel requires criminal defense attorneys to advise their noncitizen clients of the immigration consequences of conviction, merits landmark status. Unfortunately, it is no panacea. And, like every Supreme Court decision, it has its limitations. I just published a short essay discussing one such limitation: Padilla’s wholesale inapplicability to undocumented people and non-immigrants. Padilla v. Kentucky’s Inapplicability to Undocumented and Non-Immigrant Visitors, 39 Rutgers Law Record 47 (2012).

As I explain in the essay’s introduction, “These groups…do not fall within the Court’s reasoning in Padilla because they lack the substantial connection to the United States that pushed the Court to expand its Sixth Amendment right to counsel jurisprudence so as to provide a glimmer of hope for Padilla and other similarly situated lawful permanent residents (‘LPRs’). Without the protection Padilla offers, the millions of non-immigrant visitors and undocumented people in the country are left in the legal predicament in which they have been all along: at the peril of incomplete or incorrect advice about the immigration consequences of a conviction.” I may wish it were otherwise, but as I explain in the essay, the Court places a good deal of emphasis on Padilla’s lawfully obtained ties to the United States—ties that undocumented people and NIVs typically lack.

This is my second exploration of Padilla and its impact. My first article, “When State Courts Meet Padilla,” addressed difficulties state courts face applying the Supreme Court’s mandate. A third piece, a more in-depth article titled “Criminal Defense After Padilla v. Kentucky,” will appear in the Georgetown Immigration Law Journal soon.

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Posted by César on March 20, 2012 on 9:00 am 3 Comments
Filed Under: commentaries, Padilla v. Kentucky, post-conviction relief, right to counsel, Scholars Sidebar

Comments

  1. stu says

    March 21, 2012 at 4:16 pm

    Indeed those who are here illegally may not have an immediate impact felt but there are so many scenarios where they may be affect. A later amnesty? U.S. born spouse and/or children where they may be able to change status in the future. Those who leave and apply to legally return? What about those on student visas who may later turn them into work visas who later may apply to become permanent residents. What about visitors who want to apply to return under either student, permanent resident or work visa? If Padilla doesn’t apply it should as for any non-citizen, no matter when their current immigration status is, it may seriously affect them in the future.
    I only do criminal law but advise all my clients that if they aren’t citizens a conviction may affect them. Visitor or student visas may be cut short by conviction for example. Undocumented may be traced through probation departments or seized as they leave the prison gates.

    Reply
  2. Edwin J. Colon says

    March 26, 2012 at 11:22 pm

    Try explaining that to one of my clients who received the wrong advice from her criminal attorney. Explain that to her, who has been here for over 15 years, has four U.S. citizen children and LPR husband and is being deported because she accepted a plea for using a social security number that was not hers. Explain why the plea turned into a charge of moral turpitude because the 1 year sentence she got does not fall under the Petty Exception category and she now must leave her family behind. I could have pled it out to a lesser offense and avoided the severe consequences she now faces. Padilla does apply to everyone, period!

    Reply
  3. Cesar says

    March 28, 2012 at 3:30 am

    Edwin,

    I think you make a great argument for why Padilla should apply to everyone, including undocumented people. As I explain in Part IV of the essay, I agree that the consequences are very real and extremely severe. My realization that lack of advice about criminal conviction or misadvice about conviction has severe consequences for all noncitizens, however, doesn’t mean that I can ignore the Court’s emphasis on Mr. Padilla’s ties to the United States. I hope that courts disagree, but so far I haven’t seen that happening. If anyone knows of a case where Padilla has been applied to an undocumented person or non-immigrant, please send it my way.

    César

    Reply

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