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Padilla v. Kentucky

The Sixth Amendment of the United States Constitution,[1] among other things, guarantees US citizens the right to effective assistance of counsel in criminal proceedings. That through time has been made clear. What has not been made clear however, is whether that right or any of the rights in our constitution for that matter, extend to the immigrants within our borders. In 2010, the Supreme Court of the United States attempted to clarify this ambiguity with regards to the Sixth Amendment, in the case of Padilla v. Kentucky.[2]

Jose Padilla, a lawful permanent resident of the United States for over 40 years, a native of Honduras, and a Vietnam veteran, had been indicted by a Kentucky grand jury on several charges of drug distribution. Following the indictment and on the advice of his attorney, Mr. Padilla entered a guilty plea with respect to three of the charges in exchange for a dismissal of the final charge. His attorney told him before entering the plea that “he did not have to worry about immigration status since he had been in the country so long.” Little did Mr. Padilla know, this erroneous piece of advice would subject him to automatic deportation upon entering his guilty plea.

Padilla subsequently filed for post-conviction relief arguing that he was misadvised about the potential for deportation resulting from his guilty plea, in violation of the Sixth Amendment. The Supreme Court of the United States granted certiorari to determine whether a Sixth Amendment violation had taken place.

Despite its immigration consequences, Padilla v. Kentucky at its heart is an ineffective assistance of counsel case. The difference in Padilla is that despite living in the US for over 40 years, the defendant was still technically a “noncitizen,” and as such, whether the constitutional rights afforded to citizens, extended to him, was in question.  Luckily for Padilla, the court held that the right did extend to him, and that his right to counsel had been violated because his attorney could have easily determined that a guilty plea would make him eligible for deportation.

So, if you’re a “noncitizen,” you now have a Sixth Amendment right to effective and competent counsel under the Supreme Court’s decision in Padilla, right? Wrong! Padilla’s holding is complex in more ways than one. To begin, we must not forget that the “noncitizen” in this case still had some form of lawful status. He was a lawful permanent resident, or as it is more commonly referred to, he had his “green card.” It is still uncertain whether the limited right to counsel created in Padilla extends to fully undocumented immigrants.

Furthermore, the court only recognized the right for Padilla, because it felt that the erroneous piece of advise at issue, was so “succinct and straightforward” that it created a duty on the attorney to correctly advise Padilla of it. In other words, in order to meet Sixth Amendment standards, defense counsel must advise a client on immigration law when it is “succinct and straightforward,” but not necessarily in other situations. Now, anyone who’s ever practiced immigration law will tell you, there’s no such thing as “succinct and straightforward” immigration law in the eyes of immigration attorneys, let alone in the eyes of the criminal defense attorneys on whom this duty is being imposed. The analysis in each case will be very fact specific, and dependent on numerous factors. Furthermore, the court recently held in Chaidez v. United States[3] that the right does not apply to persons convicted before March 31, 2010, the day Padilla was decided.

In sum, Padilla stands for the notion that noncitizens facing criminal charges are not absolved of all constitutional rights. However it does not stand as a notion that every immigrant in criminal proceedings will have an absolute Sixth Amendment right to counsel. That much, has yet to be clearly established.


[1] U.S. CONST. amend. VI.

[2] Padilla v. Kentucky, 559 U.S. 356 (2010)

[3] Chaidez v. United States, 133 S.Ct. 1103 (2013)