Providing Immigration Advice During Criminal Proceedings: Preempting Ineffective Assistance of Counsel Claims When Non-Citizen Aliens Seek to Withdraw Guilty Pleas to Avoid Adverse Immigration Consequences

By Maryellen Meymarian*

Volume 39.1

*J.D., C.P.P., Adjunct Professor, George Mason University; former Associate Legal Advisor and Assistant Chief Counsel for the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and former Assistant District Attorney for the New York County District Attorney’s Office.

Abstract

Criminal aliens have long been deported from the United States.  In the past decade, U.S. Immigration and Customs Enforcement (ICE) has stepped up efforts to identify, detain, and remove criminal aliens incarcerated across all jurisdictions. The possible immigration consequences of criminal actions are now at the forefront of many criminal pleas.  The Supreme Court’s recent decision in Padilla v. Kentucky now mandates that defense counsel inform non-citizen alien clients whether a possible criminal plea carries a risk of deportation.  The complexities of the Immigration and Nationality Act (INA) only add to the difficulties faced by defense attorneys when providing advice to non-citizen aliens concerning pleading to criminal dispositions.  Failure to provide competent and accurate advice concerning potential deportation consequences now clearly constitutes a Sixth Amendment violation.  This Article examines how an alien’s residence status may be altered by a criminal plea; how all parties in the criminal justice system need to understand the potential immigration consequences of a given plea; and steps that should be taken to preempt future attempts to withdraw convictions based on a failure to inform an alien of potential immigration consequences.