Immigration Consequences Of Criminal Convictions
November 05, 2012

PHOENIX -- The first time I walked into the Clark County public defenders' waiting room in downtown Las Vegas, I was struck by a huge sign that greets visitors in both English and Spanish.

ATTENTION IMMIGRANT DEFENDANTS

If you plead guilty to a crime in the United States of America there may be consequences that affect your immigration status including deportation. If you are an immigrant defendant, please notify us.

Even if such signs aren't yet universal in all lawyers' offices, the sentiment is. That's because of a 2010 U.S. Supreme Court decision in Padilla v. Kentucky.

In that case, the high court agreed that a legal permanent resident named Jose Padilla was deprived of effective assistance of counsel when his lawyer failed to tell him that if he pleaded guilty to a charge of transporting marijuana, it would count as an "aggravated felony." An aggravated felony conviction makes an immigrant deportable, even a military veteran like Padilla who had lived in the country for 40 years.

Since then, lawyers have had to become especially conscientious about how they counsel their immigrant clients about plea deals.

The matter was back before the Supreme Court last Thursday (oral argument was postponed from Tuesday because of Hurricane Sandy) in the case Chaidez v. United States.

The case examines whether the Padilla decision could be applied retroactively to immigrant defendants who got bad counsel before 2010. Check out this recap on Lifted Lamp, or UC Davis School of Law Dean Kevin Johnson's preview and reflections for more about the case.

Even while the high court debates the legal question of whether their 2010 decision in Padilla can be extended to retroactive cases, the original decision continues to raise questions two years later among lawyers.

After all, most criminal defense attorneys who practice in state courts aren't well versed on the intricacies of the complex federal immigration laws.

"Exactly what Padilla requires is still being explored," Clark County Assistant Public Defender Daren Richards told me recently. "Is it just warning them that they may have immigration consequences, or do you need to advise them of what the consequences will be?"

There's apparently a debate afoot that hasn't been resolved quite yet.

Clearly this is complex stuff. Chaidez is the second case this Supreme Court term that explores the complicated nexus of criminal and immigration law.

The other case is Moncrieffe v. Holder, about a legal immigrant who was arrested with three joints worth of marijuana, and then faced deportation because of the category of his criminal conviction.