Clear and Simple Deportation Rules for Crimes: Why We Need Them and Why It's Hard to Get Them
30 Pages Posted: 1 Oct 2015 Last revised: 11 Feb 2016
Date Written: September 29, 2015
In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assuming the existence of the political will for more moderate treatment of noncitizens with criminal convictions, this Article argues for a bright-line trigger for the commencement of removal proceedings of five years imprisonment actually served and calls for the restoration of judicial discretion to halt deportations on a case-by-case basis.
Keywords: Padilla, Sixth Amendment, Immigration, Criminal Law, Immigration Consequences of Crime, Crimmigration, Law Reform
JEL Classification: K30, K39
Suggested Citation: Suggested Citation