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.