RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Counsel’s Duty to Advise

RI Criminal Defense Practice Manual CoverRHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

IMMIGRATION CONSEQUENCES

Counsel’s Duty to Advise

“The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk … The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.” Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

If the deportation consequence is clear, counsel must advise the client the exact nature of the consequence prior to entering a plea. If the consequence is unclear, counsel has a duty to advise as to the risk of immigration consequences.
Failure to advise a client as to deportation consequences satisfies prong 1 under Strickland for ineffective assistance of counsel.
Aggravated felonies, crimes of domestic violence and controlled substance offenses are generally “truly clear” so know them.

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