Transporting Padilla to Deportation Proceedings: A Due Process Right to the Effective Assistance of Counsel

Abstract:     
The Supreme Court’s landmark 2010 decision in Padilla v. Kentucky interpreted the Sixth Amendment as requiring criminal defense counsel to advise a non-citizen defendant concerning the deportation consequences of a guilty plea. To reach its decision, the Court in Padilla had to revisit the longstanding judicial dogma that deportation is purely a ‘collateral’ consequence, distinguishable from the ‘direct’ consequence of a criminal sentence. The Court saw deportation as a kind of hybrid, a different animal that challenged the traditional dichotomy. Its reasoning had nothing to do with the inherent severity of a criminal conviction, and everything to do with the nature and severity of deportation. At the same time that Padilla continues to inspire rapid-fire changes in the duties of criminal defense counsel, similar drama has been unfolding in the other immigration arena in which the effectiveness of counsel is commonly contested - counsel’s performance in the deportation proceedings themselves. Attorney General Mukasey’s 2009 decision in Matter of Compean and Attorney General Holder’s vacating of that decision later the same year have left uncertainty as to whether there is a constitutional right to the effective assistance of counsel in deportation proceedings. This article links these two lines of cases. It argues that the logic of Padilla, quite apart from its sweeping implications for the constitutional duties of criminal defense counsel, also reinforces the case for a constitutional right to the effective assistance of counsel in the deportation proceedings themselves.

Number of Pages in PDF File: 16

Keywords: Immigration, migration, aliens, deportation, removal, Padilla, counsel, ineffective assistance

Accepted Paper Series