In March 2010, the U.S. Supreme Court decided Padilla v. Kentucky, holding that the Sixth Amendment requires defense counsel to provide affirmative and competent legal advice to noncitizen defendants regarding the potential immigration consequences of a guilty plea. The Padilla decision clarifies the duty that defense attorneys owe to noncitizen defendants in important ways.
The Padilla v. Kentucky Opinion
In 2002, José Padilla pled guilty to the transportation of a large amount of marijuana, a plea that made his deportation to Honduras virtually mandatory. Padilla subsequently filed a state claim for post-conviction relief based on ineffective assistance of counsel. In his claim, Padilla asserted that he agreed to plead guilty to the charge only after his attorney specifically assured him that he “did not have to worry about immigration status since he had been in the country for so long.” The trial court held that deportation was a collateral consequence of the conviction, and therefore beyond the ambit of Padilla’s Sixth Amendment right to counsel. The Kentucky Supreme Court agreed, holding that the right to effective assistance of counsel does not protect against an attorney’s incorrect advice about what it classified as a collateral consequence of conviction.
The U.S. Supreme Court reversed and held that, because deportation is such a serious consequence and so closely intertwined with a noncitizen’s underlying criminal proceedings, defense counsel has a duty under the Sixth Amendment to provide affirmative and competent advice regarding the immigration consequences of a guilty plea.
Effective Assistance of Counsel and Professional Norms
The Court applied the Strickland ineffective assistance of counsel test to the facts in Padilla, focusing on Strickland’s first prong of whether counsel’s representation fell below “an objective standard of reasonableness.” The Court looked to professional norms that instruct defense counsel to investigate and advise clients regarding immigration consequences as benchmarks to ascertain whether defense counsel’s performance was reasonable. The Court determined that “the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”
The Sixth Amendment Requires Affirmative and Competent Advice
The Court then determined that the performance of Padilla’s counsel was deficient under the first prong of Strickland because the “consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.” However, the Court went on to find that the Sixth Amendment requires affirmative advice by an attorney regarding immigration consequences, explaining that a holding limited solely to incorrect advice would invite absurd results, because in situations where a client faces the possibility of exile from the country, defense counsel “should not be encouraged to say nothing at all.”
Importantly, Padilla recognized the complexity in certain areas of immigration law where the immigration consequences of a particular plea may be “unclear or uncertain.” In situations where the law is not settled, the Court found that defense counsel may satisfy their Sixth Amendment duty when they “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” However, the Court reiterated that “when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.”
Issues in the Wake of Padilla
Although Padilla clarified some questions regarding the Sixth Amendment duty of effective assistance of counsel in the representation of noncitizen defendants, the decision also left open a few thorny issues that are likely to be litigated in the courts over the next several years.
Immigration Consequences: Clear vs. Unclear
One interesting question left open by Padilla is what constitutes a clear or unclear immigration consequence. To be certain, some consequences may be unclear due to a lack of established case law or vagueness of certain terms of art in immigration law.
However, the immigration consequences of a particular offense often become clear by simply developing a few critical issues in each case. First, whether a particular criminal ground of immigration law will apply often depends on a client’s specific immigration status and when it was obtained. Second, a noncitizen’s criminal history plays a significant role in whether a conviction will trigger a specific immigration consequence. A lack of prior criminal history sometimes will mean that a particular disposition does not trigger immigration consequences.
Finally, the statute of conviction and the structure of a plea agreement play a significant role in whether an offense carries an immigration consequence. This is because many statutes are “divisible,” in that they contain some conduct that clearly triggers immigration consequences and other conduct that does not. Accordingly, defense attorneys often will be in a position to affirmatively counsel their clients on the consequences that inhere to problematic elements within a divisible statute.
Padilla and Retroactivity
Another issue unresolved by Padilla is whether its holding applies retroactively. In Teague v. Lane, the U.S. Supreme Court examined whether new constitutional rules of criminal procedure should apply retroactively. There, the Court held that generally, unless they fall under two narrow exceptions, new constitutional rules of criminal procedure should not apply to defendants whose convictions already have become final when the new rule is announced. Like many other states, Colorado currently follows the Teague rule of retroactivity.
However, not all constitutional decisions by the Supreme Court qualify as “new” rules for purposes of Teague retroactivity. In Teague, the Court provided two formulations for when a case establishes a new rule. First, a rule is new “when it breaks new ground or imposes a new obligation on the States or the Federal Government.” Second, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”
The Padilla decision can certainly be read as a straightforward application of Strickland. Because the ineffective assistance of counsel test under Strickland is so well settled, courts often have found that merely applying it to a particular set of facts does not amount to a new rule. In the months since Padilla was decided, several courts have found that the Padilla holding should apply retroactively.
Some commentators also believe that Padilla does not announce a new constitutional rule of criminal procedure and, therefore, should apply retroactively. The language of the opinion may suggest as much. The Court specifically rejected the government’s claim that requiring counsel to advise regarding immigration consequences of a criminal plea would “open the floodgates” to a barrage of challenges to pre-existing convictions. The Court explained that “surmounting Strickland’s high bar is never an easy task” and stated that it seemed unlikely that the decision would “have a significant effect on those convictions already obtained as the result of pleas bargains.” These statements may indicate that the Court anticipated a retroactive application of its decision in Padilla.
As criminal law and immigration law continue to become increasingly interrelated, the demand for constitutionally adequate advice by defense counsel is likely to increase. Padilla makes clear that, given the fact that immigration consequences are so closely tied to a noncitizen’s underlying criminal proceedings, the Sixth Amendment right to effective assistance of counsel demands no less.
 This work has been modified from its original form as published in: The Colorado Lawyer at: Vol. 40, No. 3, March 2011. Hans Meyer serves as the Public Policy Director for the Colorado Immigrant Rights Coalition, where he focuses on state and local advocacy related to immigration. Mr. Meyer also has a private law practice specializing in immigration law, criminal defense, and advisements regarding the immigration consequences of criminal convictions.
 130 S. Ct. 1473 (2010).
 Id. at 1486.
 For a more detailed explanation and analysis of how the Padilla decision impacts the immigration advisement duty recognized by the Colorado Supreme Court in People v. Pozo, 746 P.2d 523 (Colo. 1987), see Hans Meyer, Padilla v. Kentucky: The Duty of Defense Counsel Representing Noncitizen Clients, Colo. Lawyer, Mar. 2011, at 39.
 See Padilla, 130 S. Ct. at 1477.
 Id. at 1478.
 See Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008).
 Id. at 485.
 See Padilla, 130 S.Ct. at 1483.
 Id. at 1482 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
 For a more detailed discussion of the duty to advise and the issue of clear and unclear immigration consequences, see Ann Benson & Jonathon Moore, How to Advise Noncitizen Defendants: What is “Clear and Unclear” After Padilla v. Kentucky, Wash. Defender Ass’n Immigr. Project, Apr. 2010, available at www.defensenet.org/immigration-project/immigration-resources/padilla-v.-kentucky-resources/WDAIP%20Padilla%20Advisory%20%232%20-%20Advice%20Required%204-28-10.doc/view. See also Manuel D. Vargas, A Defending Immigrants Partnership Practice Advisory: Duty of Criminal Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky, Immigrant Defense Project, Apr. 2010, available at www.immigrantdefenseproject.org/docs/2010/10-Padilla_Practice_Advisory.pdf.
 See 8 U.S.C. § 1227(a)(2)(A)(i) (providing for exception to deportability for one crime involving moral turpitude if committed more than five years after admission, or if committed within five years of admission, is an offense punishable by less than one year of imprisonment); 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (providing for the “petty offense” exception to inadmissibility for one crime involving moral turpitude).
 489 U.S. 288 (1989).
 For a comprehensive analysis of Teague and retroactivity issues, see Christopher N. Lasch, The Future of Teague Retroactivity, or “Redressability,” after Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings, 46 Am. Crim. L. Rev. 1 (2009).
 Teague, 489 U.S. at 310.
 See People v. McDowell, 219 P.3d 332, 337 (Colo. App. 2009).
 Teague, 489 U.S. at 301.
 See Williams v. Taylor, 529 U.S. 362, 390–91 (2000). See also Newland v. Hall, 527 F.3d 1162, 1197 (11th Cir. 2008) (citing recent cases where the Court determined that specific applications of Strickland were not new rules under Teague).
 See Martin v. United States, 2010 WL 3463949 (C.D. Ill. Aug. 25, 2010); United States v. Chaidez, 730 F. Supp. 2d 896 (N.D. Ill. 2010); United States v. Hubenig, 2010 WL 2650625 (E.D. Cal. July 1, 2010); People v. Bennett, 903 N.Y.S.2d 696 (N.Y. Crim. Ct. 2010); People v. Garcia, 907 N.Y.S.2d 398, 400 (N.Y. Sup. Ct. 2010).
 See Dan Kesselbrenner, A Defending Immigrants Partnership Practice Advisory: Retroactive Applicability of Padilla v. Kentucky, National Immigration Project (June 24, 2010), available at www.fd.org/pdf_lib/padilla%20retroactivity.pdf; see also Gray Proctor and Nancy J. King, Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts, 23 Fed. Sent’g Rep. 239 (Feb. 2011).
 Padilla, 130 S. Ct. at 1485. The Supreme Court confronted a similar “floodgate” argument in Hill, but nonetheless applied Strickland to a claim that counsel had failed to advise a defendant regarding a parole eligibility prior to pleading guilty. As the court emphasized, “a flood did not follow in that decision’s wake.” Id.