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The Sixth Amendment bars clearly wrong immigration advice from criminal defense lawyers

Apr 01, 2010 The Sixth Amendment bars clearly wrong immigration advice from criminal defense lawyers

Three days ago, Maryland’s intermediate appellate court refused to include bad defense counsel advice (or silence) about immigration risks among the factors that can trigger relief on a claim of ineffective assistance of counsel under the Sixth Amendment. Maryland v. Denisyuk, ___ Md. App. ___ (March 29, 2010). Two days later, the United States Supreme Court saw things much differently: "We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim." Padilla v. Kentucky, 559 U. S. ____ (March 31, 2010). Here are some more relevant highlights from Padilla: Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), 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. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Padilla (emphasis added).

Padilla is essential reading for every criminal defense lawyer, judge and prosecutor. See my additional thoughts on this case here.

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