Padilla v. Kentucky’s Inapplicability to Undocumented and Non-Immigrant Visitors

8 Pages Posted: 20 Mar 2012

Date Written: March 18, 2012


The Supreme Court’s recognition in Padilla v. Kentucky that the Sixth Amendment right to counsel requires criminal defense attorneys to advise noncitizen defendants of the possibility of deportation prior to pleading guilty promises to lift the veil of misinformation from many plea negotiations. This promise, however, means little to undocumented people and non-immigrant visitors because they lack a critical characteristic that animated the Padilla Court: the right to remain in the United States indefinitely. Padilla’s advice mandate, this essay therefore argues, does not apply to undocumented individuals and non-immigrants facing criminal charges, continuing to leave them subject to the perils of incorrect or incomplete advice.

Keywords: Padilla v. Kentucky, Sixth Amendment, right to counsel, ineffective assistance of counsel, effective assistance of counsel, crimmigration, immigration law, criminal procedure

Suggested Citation

García Hernández, César Cuauhtémoc, Padilla v. Kentucky’s Inapplicability to Undocumented and Non-Immigrant Visitors (March 18, 2012). Rutgers Law Record, Vol. 39, 2012. Available at SSRN:

César Cuauhtémoc García Hernández (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6442 (Phone)


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