Padilla v. Kentucky

As immigration practitioners undoubtably know, immigration law is often quite severe when it comes to the consequences of criminal convictions.  Unbenownst to many criminal law practitioners, the unique severity of deportation often turns a seemingly advantageous plea deal into an immigration nightmare. 

On March 31, 2010, the U.S. Supreme Court addressed this issue and held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.  Writing for the majority, Justice Stevens stated that, "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

As the Court noted, immigration law is notoriously complex.  The Immigration group welcomes referrals and consultations on the immigration consequences of criminal convictions.

To learn more about Padilla, read the opinion and a practice advisory.

Second Simple Possession Conviction is Not Necessarily an Aggravated Felony.

In a recent decision, Carachuri-Rosendo v. Holder, No. 09-60, 560 U.S. ___, 2010 U.S. LEXIS 4764 (2010), the United State Supreme Court decided that a second simple possession conviction was not an aggravated felony under INA § 101(a)(43)(B).  At issue in the case was whether a second or subsequent state conviction would automatically be deemed as an aggravated felony by virtue of hypothetical qualification as federal felony recidivist possession.  The court indicated that it was proper to look at what was charged, as opposed to what might have been charged.  As a result, a second simple possession conviction generally will not be deemed an aggravated felony, precluding application for cancellation of removal or other forms of relief, unless there is a clear showing of recidivism within the state prosecution. 

The case resolved a split in the circuits which developed following the Supreme Court's 2006 ruling in Lopez v. Gonzales, 549 U.S. 47 (2006).  In that case, the court held that simple possession convictions which are state felonies, but would not be punishable as felonies under federal law, are not aggravated felonies as defined by INA § 101(a)(43)(B).

You can find the full opinion here.