Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

I ran across some great information from www.immigrationdefenselproject.org on the Padillia case. Here' is the main points

Some Key Padilla Take-Away Points for Criminal Defense Lawyers

• Deportation is a “penalty,” not a “collateral consequence,” of the criminal proceeding. The Court held that deportation is a “particularly severe ‘penalty’” and made clear that the “direct vs. collateral” distinction does not apply to immigration consequences and does not preclude ineffective assistance of counsel (IAC) claims based upon failure to provide correct advice about immigration consequences.

• Professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel. In support of its decision, the Court relied on professional standards that generally require counsel to determine citizenship/immigration status of their clients and to investigate and advise a noncitizen client about the immigration consequences of alternative dispositions of the criminal case.

• The Sixth Amendment requires affirmative, competent advice regarding immigration consequences; non-advice (silence) is insufficient (ineffective). In reaching its holding, the Court expressly rejected limiting immigration-related IAC claims to cases involving misadvice. It thus made clear that a defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes IAC. Even where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise a noncitizen client regarding the possibility of adverse immigration consequences.

• The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining. The Court specifically highlighted the benefits and appropriateness of the defense and the prosecution factoring immigration consequences into plea negotiations in order to craft a conviction and sentence that reduce the likelihood of deportation while promoting the interests of justice.

Also , thanks to www.lawofcriminaldefense.com

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Criminal defense lawyers in Tennessee and across the country are struggling with the fallout from the recent case from the U.S. Supreme Court.In Padilla v. Kentucky , a copy of the opinion is attached to the link, the court held the conviction was invalid based upon the criminal defense attorney's representation of the effects of the plea bargain on his immigration status.Years ago, I learned of the collateral effects of a criminal conviction on one's  immigration status.Here is a  few  suggestions ;

1. For attorneys, place in bold print in your fee agreement that you will not give any advice on immigration issues.Divorce attorneys do this all the time on tax advice during representation in a divorce.

2. For clients and criminal defense attorneys , consult with your immigration lawyer or hire one for an opinion letter advising on the immigration consequences of a plea bargain agreement or guilty plea.

3. In the plea petition , write a sentence in the agreement that you are not making any representations of any collateral effect on the client's immigration status as a result of the plea.

The Padilla case may have  a more widespread impact on plea agreements that just immigration cases.My prediction is that the failure to advise of any collateral consequence of a plea bargain agreement or a trial may result in a finding of ineffective assistance of counsel. Criminal cases may impact numerous areas of one''s life from professional licenses such as a nurse or doctor to out of state driver's licenses.Careful planning at the plea agreement may prevent a pound of cure.

I would like to invite any comments on how to deal with this issue.

• Email This
• Print
• Comments
• Trackbacks
• Share Link