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Committee Briefing: Attorney Must Tell Client Whether Plea Carries Immagration Consequences
By Tova Indritz
In a 7-2 decision in Padilla v. Kentucky,1 handed down March 31, 2010, the U.S. Supreme Court held that “[i]t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation” and the failure to do so clearly satisfies the first prong of the Strickland2 analysis regarding ineffective assistance of counsel. The Court held that “counsel must inform her client whether his plea carries a risk of deportation.”
Justice Stevens even provides a practice tip and encourages lawyers to consider immigration consequences when engaging in plea bargaining, and to do so creatively.
The Padilla decision merely reinforces existing law in those states, like New Mexico, where counsel already has the duty to determine if the client is a citizen, determine the specific immigration consequences of the crime with which the client is charged, and so inform the client.3 But in those states that only found ineffective assistance of counsel where there was affirmat
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