# Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** April 12, 2010
- **Citation:** R41190

## Text

Ineffective Assistance of Counsel:
Deportation Consequences of Guilty Pleas
name redacted
Specialist in American Public Law
April 12, 2010

Congressional Research Service
7-....
www.crs.gov
R41190

CRS Report for Congress
Prepared for Members and Committees of Congress

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

Summary
The Sixth Amendment entitles an accused in a criminal prosecution to “Assistance of Counsel for
his defense.” This right to counsel implies a right to “effective assistance.” Effective assistance
has dimensions of both breadth and depth: breadth in the sense of what considerations beyond
those immediately at issue in the prosecution should be taken into account, so-called collateral
consequences; depth in the sense of what professional standards pertain. In Padilla v. Kentucky,
the Supreme Court held that “ineffective assistance” standards require informing a noncitizen
defendant on possible deportation when advising on whether to accept a guilty plea. Forced
removal through deportation is a civil proceeding separate and apart from criminal prosecution.
The test for deficient representation for Sixth Amendment purposes is two-pronged. First, was the
attorney’s performance reasonable under prevailing professional norms? Second, was the
defendant prejudiced by the attorney’s shortcomings? As to the first prong, the Padilla Court
emphasized the unique nature of deportation. Criminal courts do not decide whether to deport a
noncitizen defendant; rather, federal immigration authorities do. Nevertheless, the Court
recognized that deportation can have enormous repercussions for a noncitizen and the
noncitizen’s family. The Court further observed that Congress curtailed the historic, though
indirect, ability of criminal judges to forestall a convict’s deportation, at the same time it
dramatically expanded the range of crimes that can lead to deportation.
The Court cited the hardship of deportation and its increasingly automatic application in prelude
to discussing whether Padilla’s attorney fell short of prevailing practice. The lawyer had
volunteered that Padilla did not have to worry about deportation in considering whether to plead
guilty to marijuana trafficking because he had legally resided in the United States for over 40
years. Yet it was not the volunteering of mistaken advice that was critical to the Court. According
to the Court, silence was not an adequate option. Instead, professional norms, as reflected in
standards of the American Bar Association, criminal defense organizations, and the like, pointed
to an affirmative duty to inform on the risk of deportation.
How far must an attorney go in advising a defendant? The five-Justice majority found
immigration law to be “succinct, clear, and explicit” in Padilla’s case, and held that in this
circumstance defense counsel must correctly advise on the high likelihood of deportation. In less
straightforward cases, the majority opined, it might suffice to advise that the pending charges
carried a risk of deportation. The two concurring Justices found immigration law to be so
complex that defense counsel need only warn of a general risk of deportation in all cases and
suggest that the defendant see a specialist for further advice.
Deportation is commonly a risk for noncitizen criminal defendants, but there are other possible
immigration consequences of a criminal conviction. Also, all defendants can face other collateral
consequences, from loss of a business license to loss of the right to vote to loss of certain public
benefits. A number of factors might bear on a defendant’s decision to plead guilty, but the Padilla
Court carefully limited its holding to advice on deportation. Also left open by Padilla is guidance
on when failing to advise on deportation is sufficiently prejudicial to a defendant to warrant
nullifying a guilty plea. The Court remanded this issue to lower courts for further consideration.

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Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

Contents
Noncitizens and Guilty Pleas.......................................................................................................1
The Case of Jose Padilla..............................................................................................................2
Constitutional Setting..................................................................................................................3
Supreme Court’s Decision in Padilla v. Kentucky ........................................................................5
Outstanding Issues ......................................................................................................................8
Prejudice to the Defendant ....................................................................................................8
Applicability of the “Direct Consequences” Limitation .........................................................9
Role of the Legislatures and the Courts ............................................................................... 10

Contacts
Author Contact Information ...................................................................................................... 11

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I

mposing criminal punishment is the province of the criminal justice system, but how cases are
resolved within that system inevitably can affect rights and benefits beyond it. Congress and
state legislatures often attach additional legal consequences to criminal activity. At times,
these consequences may be at least as significant as a potential fine or incarceration. Deportation
of a noncitizen (a term synonymous with “alien”) under federal immigration law is a case in
point. 1 Nevertheless, a noncitizen charged with a crime may not be fully aware of what is at stake
before going to trial or deciding to plead guilty to a particular offense.
This report discusses the extent of deportation-related advice a noncitizen defendant is
constitutionally owed in deciding whether to plead guilty to a particular crime. Two possible
doctrinal bases for a right to be advised are the Due Process requirement that a guilty plea be
voluntary and the Sixth Amendment right to effective assistance of counsel. The Supreme Court
had not found that either basis required advising noncitizen defendants on deportation, however,
and a distinction in the Court’s jurisprudence between direct and collateral consequences of
criminal conviction potentially precluded finding any constitutional right. Then, in Padilla v.
Kentucky,2 the Court found a right to be advised of possible deportation grounded in the Sixth
Amendment right to effective assistance of counsel. The holding in Padilla is discussed below, as
are its possible implications. Also mentioned are steps that have been taken by courts and
legislatures, constitutional requirements aside, to integrate consideration of immigration
consequences into the criminal process.

Noncitizens and Guilty Pleas
When an accused is a noncitizen, one especially momentous result of prosecution is possible
deportation.3 For decades now, Congress has placed priority on the removal of criminal aliens
from the United States. One result of this effort has been a significant statutory expansion of the
list of felonies and other offenses (especially those types of federal and state crimes categorized
as aggravated felonies under the Immigration and Nationality Act of 1952 (INA), as amended)4
that lead to swift and increasingly certain deportation following criminal imprisonment. If a
noncitizen accused of a serious crime is to avert deportation, therefore, the primary legal arena for
attention has become the criminal justice system rather than the immigration adjudication system,
even though the latter formally adjudicates and issues removal orders.
Two things should be kept in mind in this context. First, the United States has a large noncitizen
population. Roughly 25.5 million people residing in the United States in 2008, or around 8½% of
1
Deportation is the expulsion of a noncitizen from within the United States. Congress establishes grounds for
deportation and the administrative procedures for implementing them in the Immigration and Nationality Act of 1952
(INA), as amended. 8 U.S.C. §§ 1101 et seq. Under a 1996 amendment, deportation under the INA is now a
subcategory of removal. In this report the two terms are used synonymously.
2
559 U.S. ___, No. 08-651, slip op. (March 31, 2010).
3
The Supreme Court often has described deportation in dire terms. For example, in Ng Fung Ho v. White, the Court
stated that deportation risked potential “loss of both property and life, or of all that makes life worth living.” 259 U.S.
276, 284 (1922). Another case calls deportation “the equivalent of banishment.” Fong Haw Tan v. Phelan, 333 U.S. 6,
10 (1948). Other cases are to similar effect.
4
8 U.S.C. §§ 1101 et seq. The INA sets out broad, overlapping categories of potentially deportable offenses and
additionally designates specific crimes as potentially deportable. INA § 237(a)(2), 8 U.S.C. § 1227(a)(2). Applying this
detailed array is further complicated by the INA’s use of terms, “crime involving moral turpitude,” for example, that do
not precisely correspond to terms used in federal or state criminal law.

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the population, were noncitizens, according to one leading authority. 5 The exact number of
noncitizens who are charged with a crime is not known, but it would appear that many thousand
noncitizens pass through criminal courts each year. During FY2008, over 97,000 criminal aliens
were removed from the United States, over one-third of these for drug-related offenses. 6 During
the same period, the Criminal Alien Program, a cooperative federal-state law enforcement effort,
issued 221,085 charging documents, the first step in removal proceedings, against criminal aliens
incarcerated in federal, state, or local facilities. 7
The second observation concerns how criminal cases are in fact resolved. The criminal grounds
for removal are premised on a “conviction,” and in the United States convictions most commonly
take the form of guilty pleas. Guilty pleas are the mainstay of the American criminal justice
system. In 2004, they comprised 95% of state felony convictions, 96% of state felony drug
convictions. In federal courts, 96% of the defendants whose cases were resolved through
conviction in the year beginning June 2007 pleaded guilty. 8 Thus, one commentator has observed
the following about the modern role of a criminal defense lawyer:
The most important service that criminal defense lawyers perform for their clients is not
dramatic cross-examination of prosecution witnesses or persuasive closing arguments to the
jury; it is advising clients whether to plead guilty and on what terms. More than ninety
percent of dispositions on the merits of criminal prosecutions are convictions, and more that
ninety percent of convictions result from guilty pleas. Accordingly, the accuracy and fairness
of the criminal justice system depend principally on the actions of defense lawyers,
prosecutors, and judges at the guilty plea stage. In Hill v. Lockhart,9 the Supreme Court
recognized the significance of counsel at the pleading stage, holding that the Sixth
Amendment grants clients the right to effective assistance of counsel when pleading guilty. 10

The Case of Jose Padilla
Jose Padilla had been a legal permanent resident of the United States when he was pulled over by
Kentucky authorities at a weigh station for failing to have a weight and distance number on his
truck. A subsequent search of the truck revealed approximately 1,000 pounds of marijuana, and
Padilla was charged with drug trafficking. He pleaded guilty to three charges, trafficking in more
than five pounds of marijuana among them.
Two years later, in August 2004, Padilla filed a petition with the Kentucky courts alleging
ineffective assistance of counsel. He asserted that his attorney had failed to adequately investigate
and advise him on the possible immigration consequences of his guilty plea, but instead,
5

Jeffrey S. Passel & D’Vera Cohn, A Portrait of Unauthorized Immigrants in the United States (Pew Hispanic Center
April 14, 2009).
6
Department of Homeland Security, Office of Immigration Statistics, Annual Report, Immigration Enforcement
Actions: 2008 at Table 4 (July 2009).
7
Id. at 4.
8
Brief of Amici Curiae States of Louisiana, et al. at 9, Padilla v. Kentucky, No. 08-651 (U.S. Supreme Ct.) and
authorities cited therein. This brief was submitted by twenty-seven states and the National District Attorneys
Association.
9
474 U.S. 52 (1985).
10
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87
CORNELL L. REV. 697, 698 (2002).

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according to Padilla, said that Padilla “did not have to worry about [his] immigration status since
he had been in the country so long.” Padilla further claimed that he would not have pleaded guilty
as he did, had he known of the possibility of deportation.
The Hardin County Circuit Court ruled against Padilla, holding that advice (or failure to advise)
on deportation cannot give rise to a claim of ineffective assistance of counsel in a criminal case.
The Kentucky Court of Appeals reversed, finding further proceedings were warranted by the
allegation that affirmative misadvice had been given. The Kentucky Supreme Court reversed the
Court of Appeals, concluding that neither a failure to advise nor misadvice on deportation could
support an ineffective assistance of counsel claim. Padilla submitted a petition for a writ of
certiorari to the United States Supreme Court, which granted the writ and heard oral argument
October 13, 2009.

Constitutional Setting
It was evident in the pleadings and oral argument that the Court’s decision in Padilla depended on
what it conceived to be the reach of defense counsel’s obligations under the Constitution. Must
defense counsel ever advise a client about matters not immediately before the criminal court as a
predicate to the client pleading guilty? If so, what breadth of expertise is expected? Is there a
distinction between failing to advise a client and misinforming a client?
The Sixth Amendment includes an express right to counsel among other procedural protections it
confers to criminal defendants:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed ... and
to be informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense. (emphasis added)

The Court has long held that “Assistance of Counsel” meant effective assistance of counsel,11 but
it had not explored what “defense” entailed. The text of the Sixth Amendment suggests the
assistance due under it is discrete in scope. The Amendment pertains in a “criminal prosecution,”
the process by which the government moves against a person before a court of law for specified
criminal acts. Certainly, other rights afforded an accused in the Amendment—speedy trial, jury
trial, knowledge of the accusation, confrontation of witnesses, compulsory process—all address
the fairness and integrity of this adversarial effort to convict and impose punishment.

11

The lineage of this principle began with Powell v. Alabama, 287 U.S. 45 (1932).

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Though the Supreme Court had not set a clear precedent,12 the prevailing test for “ineffective
assistance of counsel” in plea cases appeared to many to be bound by a tight focus on criminal
jeopardy alone.13 The critical distinction was between “direct” and “collateral” consequences of
prosecution. In the context of guilty pleas, the most apparent direct consequence is the
punishment that can be imposed, but even here, it may be uncertain how far the duty to advise
extends beyond potential maximum sentences, and possibly mandatory minimums, to more
nuanced matters involving possible parole and probation.14 Collateral consequences, by contrast,
are more diverse, and can include, in addition to possible conditions on how sentences may be
served, such eventualities as loss of the right to vote, loss of a passport, loss of the right to possess
firearms, loss of public employment or public benefits, loss of professional or business licenses,
possible civil liability, possible enhanced punishment for future crimes, and an obligation to
register as an offender. 15 Immigration consequences of a conviction, including deportation, also
were regarded as collateral, because they were not immediately imposed as punishment by a
convicting court.
The direct versus collateral consequence distinction made in many “ineffective assistance” cases
under the Sixth Amendment would appear to have migrated from case law on the requirement of
a court to inquire into whether a guilty plea is voluntary for purposes of meeting a defendant’s
due process rights under the Fifth and Fourteenth Amendments.16 Those cases drew a line past
which the court was not obligated to inquire into a defendant’s motives for pleading guilty or the
defendant’s expectations on how a sentence would be carried out. Absent improper coercion or
deceit, a knowing “plea of guilty entered by one fully aware of the direct consequences, including
the actual value of any commitment made to him by the court, prosecutor or his own counsel,
must stand....”17
Though “ineffective assistance” analysis in plea cases might have appeared to have become
tethered to the voluntariness test applied in due process cases, the Court did develop distinct
12

The leading Supreme Court decision on ineffective assistance and guilty pleas is Hill v. Lockhart. 474 U.S. 52
(1985). Hill plausibly may be read as eschewing a direct v. collateral consequence test for Sixth Amendment claims.
See 474 U.S. at 56, where the Court describes parole eligibility, the basis for the ineffective assistance claim in the
case, as being collateral—“We have never held that the United States Constitution requires the State to furnish a
defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.... ”—yet
proceeds to analyze the claim under the separate Strickland standard, described below. At minimum, Hill would not
appear to have expressly adopted a “direct v. collateral” test. See Transcript of Oral Argument Before the Supreme
Court at 42, 50, Padilla v. Kentucky, No. 08-651 (Oct. 13, 2009).
13
This view was dispositive in the opinion of the Supreme Court of Kentucky in Padilla’s case (Commonwealth v.
Padilla, 253 S.W. 3d 482 (Ky. 2008)), and the U.S. Supreme Court’s opinion in Padilla observed that the “Kentucky
high court is far from alone in this view.” Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 7 & n. 9 (March
31, 2010). See also Fuartado v. Commonwealth, 170 S.W. 3d 384 (Ky. 2005). A leading commentary that argued for a
broad interpretation of counsel’s constitutional responsibilities in a plea setting nevertheless observed: “[A]ll courts that
have considered the issue have held that defense lawyers must explain the direct consequences of a plea, such as length
of imprisonment and amount of fine, but need not explain ‘collateral consequences,’ such as revocation of probation or
parole, that sentences may be served consecutively rather than concurrently, or that the plea may result in deportation.”
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87
CORNELL L. REV. 697, 703 (2002).
14
Wayne R. LaFave et al., Criminal Procedure § 21.4(d) (3d ed. 2007).
15
Id.
16

See Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty
Pleas, 87 CORNELL L. REV. 697, 703-708 (2002).
17
Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F. 2d 571, 572 n.2 (5th Cir.
1957)).

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standards for Sixth Amendment challenges. The seminal case is Strickland v. Washington.18 The
Strickland Court began its analysis with an observation reminiscent of due process cases. “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” The Court then continued to speak of defense counsel’s role in the
adversarial process, but in doing so began to relate adequacy of counsel to prevailing standards of
representation instead of exclusively to fairness of result.
[T]he proper standard for attorney performance is that of reasonably effective assistance....
More specific guidelines are not appropriate....
Representation of a criminal defendant entails certain basic duties.... From counsel’s function
as assistant to the defendant derive the overarching duty to advocate the defendant’s cause
and the more particular duties to consult with the defendant on important decisions and to
keep the defendant informed of important developments in the course of the prosecution.
... In any case presenting an ineffectiveness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of
practice as reflected in the American Bar Association standards and the like ... are guides to
determining what is reasonable, but they are only guides. No particular set of detailed rules
for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by
defense counsel or the range of legitimate decisions regarding how best to represent a
criminal defendant.19
Broad leeway is to be given to defense counsel in fashioning defense strategies, and
reasonable professional assistance can comprehend a wide range of options. The purpose of
the Sixth Amendment, according to Strickland, is limited to setting a baseline for acceptable
attorney conduct to preserve the integrity of the criminal justice system. “[T]he purpose of
the effective assistance guarantee of the Sixth Amendment is not to improve the quality of
legal representation, although that is a goal of considerable importance to the legal system.
The purpose is simply to ensure that criminal defendants receive a fair trial.”20

The test for relief under Strickland is two-pronged. Even if representation is constitutionally
deficient, a defendant still must show that the deficiency was prejudicial to the outcome of the
case. The Supreme Court did not address this second prong in its Padilla decision. As discussed
below, application of the prejudice requirement can be both difficult and strict.

Supreme Court’s Decision in Padilla v. Kentucky
The Supreme Court issued its decision in Padilla v. Kentucky on March 31, 2010.21 Seven of the
nine Justices agreed that the Sixth Amendment right to effective assistance requires that a defense
lawyer, at a minimum, raise the possibility of deportation in advising a noncitizen in a criminal
case. Writing the five-Justice majority opinion, Justice Stevens acknowledged the prevalence of

18

466 U.S. 668 (1984).
466 U.S. at 687, 688-689.
20
466 U.S. at 689.
21
559 U.S. ___, No. 08-651, slip op. (March 31, 2010).
19

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the direct versus collateral consequences test in effective assistance jurisprudence. Nevertheless,
he eschewed applying that test in Padilla’s case “because of the unique nature of deportation.”22
Justice Stevens raises several considerations that together make deportation different. First, the
impact of deportation is profound. Though recognizing that removal proceedings are civil in
nature and that deportation is not strictly a criminal sanction, Justice Stevens characterizes
deportation as a “particularly severe ‘penalty.’” Second, it is “‘most difficult’ to divorce the
penalty [of removal] from conviction in the deportation context.” Though he states that he is
reserving the question of whether a direct versus collateral consequences test is ever appropriate
in an effective assistance case, Justice Stevens emphasizes that changes in immigration law now
make deportation a “nearly automatic result” for many noncitizen offenders. Third, deportation
has long been closely associated with criminal prosecutions. For example, Justice Stevens
observes that, from 1917 to 1990, Congress had given both state and federal sentencing judges
discretion to make a “judicial recommendation against deportation” (JRAD) in individual
criminal cases in which a noncitizen offender would otherwise be vulnerable to removal, and
immigration authorities had honored these recommendations. The majority further notes that the
United States Court of Appeals for the Second Circuit had held that, before Congress repealed
authority for them, JRAD requests were part of criminal sentencing, and not of deportation
proceedings, and failure of defense counsel to be aware of, advise on, and pursue JRAD relief
during sentencing could be the basis of a Sixth Amendment ineffective assistance claim. 23
After holding that “advice regarding deportation is not categorically removed from the ambit of
the Sixth Amendment right to counsel,”24 Justice Stevens turns to whether the level of
representation provided to Padilla by his counsel was reasonable under prevailing professional
norms. In quick order, the majority opinion holds that it was not. In doing so, Justice Stevens in
one paragraph marshals the American Bar Association Standards for Criminal Justice and 15
other authorities, from bar guides to practice manuals to a Department of Justice compendium of
standards for defending indigents to scholarly treatises and articles. Echoing Strickland in calling
these authorities valuable guides, the majority finds that “[t]he weight of prevailing professional
norms supports the view that counsel must advise her client regarding the risk of deportation.”25
Simply requiring defense counsel to mention a possibility of deportation provides minimal
guidance. Immigration law can be complicated and each plea negotiation presents its own
challenges. Unless the duty to advise is never to extend beyond a general warning that plea
bargains might implicate deportation, courts will inevitably be called upon to determine what
assistance is reasonable in particular circumstances. There may be several facets to an inquiry into
effective assistance. For example, at what stage must an attorney discern the prospect of
deportation attendant to possible plea offers that might arise during plea negotiations and discuss
them with the defendant? Also, when is consultation with an immigration law expert required?
(And at whose expense—noncitizens do not have a right to an attorney at government expense in
removal proceedings?)
22

Slip op. at 8.
Slip op. at 5, citing Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).
24
Slip op. at 9.
25
Slip op. at 9. Justice Stevens quotes from an amicus brief: “[A]uthorities of every stripe ... universally require
defense attorneys to advise as to the risk of deportation consequences for non-citizen clients.... ” Slip op. at 10, quoting
Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors, as Amici Curiae in Support of Petitioner at
12-14, Padilla v. Kentucky, No. 08-651.
23

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On this issue of what immigration expertise is required of defense counsel, the five-Justice
majority opinion and the two-Justice concurrence part ways. The majority has some expectation
that defense counsel will personally look into, though not necessarily become an expert on, the
deportation risks attending a potential guilty plea. According to the majority, when immigration
law is “succinct, clear, and explicit in defining the removal consequence” of a conviction for a
specified crime, an attorney must correctly advise on the very high likelihood of deportation
before the accused pleads guilty to the offense. On the other hand, if the prospect of deportation
due to a particular plea appears less certain, the lawyer’s obligation is more general. In less
straightforward cases, “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.”26
Silence, however, is never an option.27
Ultimately, silence, or at least willful silence, is not an option for concurring Justices Alito and
Roberts either. Beyond avoiding affirmative misadvice, they would require that “[w]hen a
criminal defense attorney is aware that a client is an alien, the attorney should advise the client
that criminal conviction may have adverse immigration consequences under immigration laws
and that the client should consult an immigration specialist if the client wants advice on the
subject.”28 The concurrence’s preference for a “warn and refer” standard rests largely with its
view of immigration law. Immigration law is complicated; courts of appeals disagree on the
criminal alien provisions; what appears to be clear may not be; and, therefore, requiring criminal
defense lawyers to assess and advise on immigration consequences carries with it the risk that the
advice may be incomplete, misleading, or mistaken. Better, in the concurrence’s view, to limit
defense counsel’s responsibilities to matters germane to guilt and criminal punishment and leave
responsibility for giving advice on immigration consequences to immigration experts or, possibly
to a lesser extent, the courts.
In dissent, Justice Scalia, joined by Justice Thomas, finds “no basis in text or in principle to
extend the constitutionally required advice regarding guilty pleas beyond those matters germane
to the criminal prosecution at hand—to wit, the sentence that the plea will produce, the higher
sentence that conviction after trial might entail, and the chances of such a conviction.”29 In the
dissent’s view, even if a defense lawyer should look into possible immigration issues under
prevailing norms of practice, not “all professional responsibilities of counsel ... become
constitutional commands.” Rather than being a Sixth Amendment issue of effective assistance of
counsel in a criminal prosecution, the dissent finds the heart of the controversy in Padilla to lie
closer to notions of ensuring the fairness and voluntariness of guilty pleas. This is a due process
obligation of the court, not counsel, and even though there may not be a constitutional remedy in
26

Slip op. at 12.
One much discussed issue in Padilla’s case that turned out not to be prominent in the Court’s analysis was the
significance of mistaken advice. The Solicitor General and the initial appellate decision by the Kentucky courts, for
example, would have drawn the line on ineffective assistance in a criminal case between not advising on the “collateral
consequence” of deportation and wrongly volunteering to a defendant that deportation was not a possible consequence
of a guilty plea. The majority, however, concluded that “[a] holding limited to affirmative misadvice would invite two
absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when
answers are readily available.... Second, it would deny a class of clients least able to represent themselves the most
rudimentary advice on deportation even when it is readily available.” Slip op. at 13. The concurrence agreed that
simply refraining from giving wrong advice on deportation was insufficient to meet Sixth Amendment requirements.
28
Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 14 (March 31, 2010) (Alito, J., joined by Roberts, C.J.,
concurring).
29
Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 3 (March 31, 2010) (Scalia, J., joined by Thomas, J.,
dissenting).
27

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a case like Padilla’s—the dissent observes that the matter had not been presented to the lower
courts and, remember, that the distinction between direct and collateral consequences was drawn
in due process plea decisions—legislatures and the courts could establish (and to a degree have
established) nonconstitutional rules and remedies for falling to advise, or for misadvising, on
deportation.

Outstanding Issues
Prejudice to the Defendant
The Padilla Court did not decide whether Padilla was entitled to relief because the courts below
had never reached the “prejudice” prong of the Strickland test. Again, a failure to provide
reasonable professional assistance can fall short of Sixth Amendment expectations but still not
warrant setting a plea aside. For that, a defendant must have been “prejudiced” by the error. As
articulated in Strickland: “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome.... On the other hand, we believe that a defendant need not
show that counsel’s deficient conduct more likely than not altered the outcome in the case.... The
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”30 When a defendant seeks to set
aside a guilty plea for ineffective assistance reasons, “in order to satisfy the ‘prejudice’
requirement, the defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.”31
Determining what a defendant would have done had counsel met Sixth Amendment standards is
necessarily predictive. Also, when effective counsel would have consisted of telling a defendant
that a particular plea would result in deportation, it may be especially difficult in many cases to
safely conclude that a reasonable defendant nevertheless would have accepted the plea instead of
going to trial or continuing plea negotiations. Why not “roll the dice” when exile is the
alternative?
Still, courts have been willing to rigorously explore what the counterfactual would have been. As
to Padilla, it may be argued that the case against him was so overwhelming that conviction of
some deportable offense was certain and going to trial would have exposed him to a much longer
term of imprisonment.32 The rub is that without a trial record, it is difficult to assess the strength
of the government’s case or the accused’s defense. It thus appears that assessing prejudice could
entail holding an evidentiary hearing to determine whether the defendant had a triable case with
some reasonable chance of acquittal or conviction of a lesser, non-deportable offense. 33 But even
this type of process may not adequately get to whether “there is a reasonable probability that, but
for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on
going to trial.” When deportation is certain, it may especially difficult to conclude that trial is not
a reasonable alternative without also taking into account such broader considerations as the
30

466 U.S. at 693, 694.
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
32
See Brief for the United States, as Amicus Curiae Supporting Affirmance at 29-32, Padilla v. Kentucky, No. 08-651.
31

33

See Transcript of Oral Argument Before the Supreme Court at 18-19, Padilla v. Kentucky, No. 08-651 (Oct. 13,
2009).

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defendant’s family ties in the United States and the conditions he would face in his home country
if deported there.34

Applicability of the “Direct Consequences” Limitation
The majority in Padilla based its analysis on the purported uniqueness of deportation. Also,
because the majority found deportation to be unique, resolving Padilla did not, according to the
majority, require consideration of whether to apply a distinction between direct and collateral
consequences to define the scope of constitutionally compelled legal representation under the
Sixth Amendment.
After Padilla, it seems inevitable that a variety of offenders will allege they were not advised on
some matter not directly germane to guilt and criminal punishment and that the failure to be
advised caused them to enter a guilty plea they otherwise would have rejected. Will the courts
hold the line at deportation, or will they engage in an extended exploration of what consequences
“count” (e.g., because of their harshness and immediacy, or for some other reason) and what
consequences “do not count”? Justice Scalia, among others, sees the floodgates opening: “[The
concurring opinion’s] suggestion that counsel must warn defendants of removal consequences ...
cannot be limited to those consequences except by judicial caprice. It is difficult to believe that
the warning requirement would not be extended, for example, to the risk of heightened sentences
in later federal prosecutions pursuant to the Armed Career Criminal Act. We could expect years of
elaboration upon these issues in the lower courts, prompted by the defense bar’s devising of everexpanding categories of plea-invalidating misadvice and failures to warn—not to mention
innumerable evidentiary hearings to determine whether misadvice really occurred or whether the
warning was really given.”35
Even if the courts were to consider “effective assistance” claims in additional contexts, some do
not see the implications of considering “collateral” consequences to be overwhelming. One
commentator envisions that the great majority of collateral consequences would flow from three
circumstances: Is the client an alien? Does the client have a criminal history or other pending
charges? Does the client hold government licenses, hold a government job, or collect public
benefits? Further considerations might pertain to drug or sex crimes. Exploring these issues, it is
claimed, is “a manageable amount of basic spadework.”36
Also, judicial delineation of what consequences merit “effective assistance of counsel” during the
course of a prosecution may not be as “prolonged” or “arbitrary” as Justice Scalia may suggest.
For one thing, there may be a range of consequences that are so relatively inconsequential that
they rarely will be found to have prejudiced a defendant’s calculus in deciding whether to plead
guilty. Will failure to be informed of possibly losing the right to vote, for example, ever be found
to have unreasonably prejudiced the decision of a defendant to plead guilty instead of risking
many more years of imprisonment or capital punishment? Further, though not directly at issue
before the trying court, some consequences might be seen as fitting more naturally into the inner
34

See Transcript of Oral Argument Before the Supreme Court at 35-36, Padilla v. Kentucky, No. 08-651 (Oct. 13,
2009).
35
Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 4 (March 31, 2010) (Scalia, J., joined by Thomas, J.,
dissenting).
36
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87
CORNELL L. REV. 697, 738 (2002).

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orbit surrounding “direct consequences” and thus meriting advice of counsel. In addition to
deportation, for example, there are the possible and easily identifiable consequences for
defendants within the criminal justice system itself—for example, eligibility for parole and
heightened penalties for future convictions. Finally, there may be policy and legal limits on
legislatures in establishing incidental effects of criminal convictions.

Role of the Legislatures and the Courts
Though the Constitution does not require trial courts to inform noncitizen defendants of possible
deportation consequences of guilty pleas—due process requirements for knowledgeable and
voluntary pleas cover only “direct” criminal consequences—many jurisdictions do. According to
one amicus brief in Padilla, 28 states, the District of Columbia, and Puerto Rico have a statute,
court rule, or standard plea form requiring an advisement on immigration consequences. 37
The requirements vary. For example, the District of Columbia Code requires that a court give the
following advisement on the record prior to accepting a plea of guilty or nolo contendere: “If you
are not a citizen of the United States, you are advised that conviction of the offense for which you
have been charged may have the consequences of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United States.”38
Additionally, the court is directed to allow a defendant additional time to consider a plea upon
request of the defendant after the advisement.39 Moreover, if a court fails to give the required
advisement and the plea may have one of the consequences included in the advisement, the
defendant can have the judgment vacated and enter a plea of not guilty in its stead. 40 Some states
require a more general warning that a plea can have immigration consequences.41 Other variations
require that the court direct a defendant to defense counsel for advice, 42 or even that the court
ascertain whether a defendant’s attorney has discussed possible deportation consequences with
the accused. 43 Not all of the statutes and rules call for automatic vacation of a plea for failure to
meet pertinent requirements.
Constitutionalizing a defense counsel obligation to advise on possible deportation does not
foreclose this type of legislation or rules, nor necessarily make existing statutes and rules
superfluous. Rather, statutes and rules could still have an important complementary or
supplementary role. For example, a requirement that a court inform a defendant of the possibility
of deportation consequences, along with an opportunity to consult with defense counsel further,
presumably could lessen the possibility of a Sixth Amendment violation for failure of defense
counsel to advise. Also, allowing a defendant to have a plea vacated upon showing, for example,
that the court failed to warn of possible deportation on the record, or give additional time to
consult counsel on this point, could provide for a statutory remedy through a much easier process
than might be required to show a constitutional violation. A statutory case could be made simply
37

Brief of the National Association of Criminal Defense Lawyers, et al. as Amici Curiae in Support of the Petitioner at
20-21, App. 11a, Padilla v. Kentucky, No. 08-651.
38
D.C. Code Ann. § 16-713 (a) (2010).
39
D.C. Code Ann. § 16-713 (b) (2010).
40
Id.
41
E.g., Tex. Code Crim. Proc. art. 26.13 (2010).
42
Md. Rule 4-242(e) (2010).
43
N.M. Dist. Ct. R.Cr.P. 5-303(F)(5) (2010).

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by consulting the court record, whereas a constitutional case might necessitate difficult inquiries
into prejudice and what defense counsel told, or failed to tell, the defendant and when.

Author Contact Information
(name redacted)
Specialist in American Public Law
[redacted]@crs.loc.gov, 7-....

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41190. Public record. Not legal advice.