Immigration Advisements for Noncitizen Criminal Defendants

Navigating the criminal justice system is challenging for anyone, but for noncitizen defendants, the stakes can be even higher. A criminal conviction can lead to severe immigration consequences, including deportation, inadmissibility, and denial of naturalization. Recognizing these high stakes, courts have established that defense attorneys have a duty to advise noncitizen defendants of the immigration consequences of their criminal charges.

Padilla v. Kentucky

In the landmark case Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court held that the Sixth Amendment requires defense counsel to inform noncitizen defendants about the potential immigration consequences of a guilty plea. The Court recognized that deportation is a severe penalty that is intimately related to the criminal process, and thus, accurate legal advice on this matter is essential.

Key Points from Padilla v. Kentucky:

• Sixth Amendment Right: The right to effective assistance of counsel includes being informed about immigration consequences.
• Clear Consequences: When the deportation consequence is clear, defense counsel must provide accurate advice.
• Complexity of Immigration Law: The Court acknowledged that immigration law is complex, but this does not absolve defense attorneys from their duty to inform clients about clear immigration consequences.
• Appropriateness of considering immigration consequences in plea negotiations: The Court explicitly noted that “informed consideration of possible deportation” can benefit the parties during the plea-bargaining process and noted that counsel “may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation.”

People v. Pozo: A Colorado Perspective

In Colorado, criminal defense counsel had a duty to advise of immigration consequences even decades prior to Padilla. In People v. Pozo, 746 P.2d 523 (Colo. 1987), the Colorado Supreme Court addressed the issue of ineffective assistance of counsel in the context of immigration consequences. The court held that defense counsel’s failure to advise a noncitizen defendant of the immigration consequences of a guilty plea could constitute ineffective assistance of counsel under the Sixth Amendment. 

Key Points from People v. Pozo:

• Duty to Inform: Defense counsel has a duty to inform noncitizen defendants of the potential immigration consequences of a guilty plea.
• Ineffective Assistance: Failure to provide such advice can be grounds for claiming ineffective assistance of counsel.
• Impact on Plea Decisions: The decision emphasizes the importance of informed decision-making by noncitizen defendants regarding their pleas.

Practical Considerations for Noncitizen Defendants

Noncitizen defendants in Colorado and their attorneys should be proactive in understanding the immigration consequences of their criminal charges. Here are some practical steps:

• Consult an Immigration Attorney: Seek advice from an immigration attorney who can provide detailed information on how a criminal conviction may affect immigration status and get the advisement in writing.
• Discussions with Counsel: Ensure that defense counsel and the defendant confirm the defendant’s immigration status and if the defendant is a noncitizen, make a plan for a written immigration advisement.
• Understand the Charges: Through work with immigration counsel, be aware of which criminal charges carry immigration consequences and consult regarding potential creative plea alternatives.
• Get Client-Specific Advisements: Criminal charges will affect individual noncitizens differently. What is an immigration safe plea for a lawful permanent resident may be disastrous for a person on a work visa.  What is an immigration safe please for most individuals may cause a noncitizen to lose their Temporary Protected Status or DACA.  Every individual needs an individualized advisement and counsel should not rely on the fact that a charge was considered an immigration-friendly plea for a past client to mean it would not cause issues for a current client.

Conclusion

The right of noncitizen criminal defendants in Colorado to be advised of the immigration consequences of their charges is a critical protection that ensures informed decision-making in the criminal justice process. The decisions in Padilla v. Kentucky and People v. Pozo underscore the importance of this right and the duty of defense counsel to provide accurate and comprehensive advice. At Joseph & Hall, we provide client-specific immigration advisements on criminal charges and work with our clients and their criminal defense lawyers throughout plea negotiations to make sure that the client understands the consequences of any plea and to try to find the most immigration-friendly resolution to the case.