Padilla v. Kentucky – Noncitizen Defendant Has Sixth Amendment Right To Competent Counsel

In a historic decision, on March 31, 2010, the U.S. Supreme Court held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. In the absence of such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

Citing the American Bar Association (ABA) Standards for Criminal Justice, Pleas of Guilty (3d ed. 1999) and the National Legal Aid and Defender Association (NLADA) Performance Guidelines for Criminal Representation (1995), the Court's decision may be interpreted as imposing the following affirmative duties upon criminal counsel:

• Duty to inquire about citizenship/immigration status at initial interview stage
• Duty to investigate and advise about immigration consequences of plea alternatives
• Duty to investigate and advise about immigration consequences of sentencing alternatives

While the ramifications of this decision for respondents who now face deportation possibly as a result of ineffective assistance counsel have yet to be fully explored by immigration attorneys, the Court's decision provides hope that future noncitizen defendants will be better informed regarding the implication of any plea agreement on their immigration status, and thus be able to avoid deportation when possible.

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