By now, crImmigration followers are well aware of the test the Supreme Court set out in Padilla v. Kentucky, 130 S. Ct. 1473 (2010): when deportation is clearly going to result from conviction, the criminal defense attorney must tell her client as much, but “[w]hen the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”
This framework, I write in a new article, is highly problematic. Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens, 72 Maryland Law Review 844 (2012). Rather than require that criminal defense attorneys thoroughly investigate the law and facts relevant to their client’s predicament as the Court’s ineffective assistance of counsel caselaw has long required and as lower courts have applied in countless cases, Padilla created a “Strickland-lite” framework. As I explain in the article’s abstract, “Under Strickland-lite, the Court failed to require that criminal defense attorneys investigate the law and facts relevant to immigration consequences as fully as it has long required attorneys to do when investigating other aspects of a criminal case, including even immigration law provisions central to guilt or punishment.” This approach, I argue, “conflicts with Strickland’s mandate and fails to remedy the problem of inaccurate advice for noncitizen criminal defendants that Padilla purports to remedy.”
I hope you’ll take a look and let me know what you think through the blog’s comments feature.
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