{
  "id": "R41190",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R41190",
  "active": true,
  "source": "EveryCRSReport.com",
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      "id": 373365,
      "date": "2010-04-12",
      "retrieved": "2016-04-06T22:18:31.130783",
      "title": "Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas",
      "summary": "The Sixth Amendment entitles an accused in a criminal prosecution to \u201cAssistance of Counsel for his defense.\u201d This right to counsel implies a right to \u201ceffective assistance.\u201d Effective assistance has dimensions of both breadth and depth: breadth in the sense of what considerations beyond those immediately at issue in the prosecution should be taken into account, so-called collateral consequences; depth in the sense of what professional standards pertain. In Padilla v. Kentucky, the Supreme Court held that \u201cineffective assistance\u201d standards require informing a noncitizen defendant on possible deportation when advising on whether to accept a guilty plea. Forced removal through deportation is a civil proceeding separate and apart from criminal prosecution.\nThe test for deficient representation for Sixth Amendment purposes is two-pronged. First, was the attorney\u2019s performance reasonable under prevailing professional norms? Second, was the defendant prejudiced by the attorney\u2019s shortcomings? As to the first prong, the Padilla Court emphasized the unique nature of deportation. Criminal courts do not decide whether to deport a noncitizen defendant; rather, federal immigration authorities do. Nevertheless, the Court recognized that deportation can have enormous repercussions for a noncitizen and the noncitizen\u2019s family. The Court further observed that Congress curtailed the historic, though indirect, ability of criminal judges to forestall a convict\u2019s deportation, at the same time it dramatically expanded the range of crimes that can lead to deportation.\nThe Court cited the hardship of deportation and its increasingly automatic application in prelude to discussing whether Padilla\u2019s attorney fell short of prevailing practice. The lawyer had volunteered that Padilla did not have to worry about deportation in considering whether to plead guilty to marijuana trafficking because he had legally resided in the United States for over 40 years. Yet it was not the volunteering of mistaken advice that was critical to the Court. According to the Court, silence was not an adequate option. Instead, professional norms, as reflected in standards of the American Bar Association, criminal defense organizations, and the like, pointed to an affirmative duty to inform on the risk of deportation.\nHow far must an attorney go in advising a defendant? The five-Justice majority found immigration law to be \u201csuccinct, clear, and explicit\u201d in Padilla\u2019s case, and held that in this circumstance defense counsel must correctly advise on the high likelihood of deportation. In less straightforward cases, the majority opined, it might suffice to advise that the pending charges carried a risk of deportation. The two concurring Justices found immigration law to be so complex that defense counsel need only warn of a general risk of deportation in all cases and suggest that the defendant see a specialist for further advice.\nDeportation is commonly a risk for noncitizen criminal defendants, but there are other possible immigration consequences of a criminal conviction. Also, all defendants can face other collateral consequences, from loss of a business license to loss of the right to vote to loss of certain public benefits. A number of factors might bear on a defendant\u2019s decision to plead guilty, but the Padilla Court carefully limited its holding to advice on deportation. Also left open by Padilla is guidance on when failing to advise on deportation is sufficiently prejudicial to a defendant to warrant nullifying a guilty plea. The Court remanded this issue to lower courts for further consideration.",
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