Criminal Defense after Padilla v. Kentucky
César Cuauhtémoc García Hernández
Capital University Law School; University of Denver Sturm College of Law
26 Georgetown Immigration Law Review 475 (2012)
The Supreme Court’s decision in Padilla v. Kentucky involves criminal defense attorneys in immigration law as never before. Long the mediators between defendants and the state’s penal authority, these attorneys must now advise their noncitizen clients about the potential immigration pitfalls of a conviction. Just what advice is required, however, depends on the clarity of the immigration consequence. This article unpacks Padilla and the jurisprudential convergence of criminal law and immigration law to develop a theoretical framework based on close readings of the Immigration and Nationality Act’s crime-based grounds of removal. Applying this framework suggests that crimes that likely constitute controlled substances offenses or aggravated felonies require clear, unequivocal advice that conviction will lead to deportation, while offenses that might constitute crimes involving moral turpitude require general advice only.
Number of Pages in PDF File: 47
Keywords: immigration, criminal law, Sixth Amendment, right to counsel, ineffective assistance of counsel, crimmigration
Date posted: June 19, 2013