When an Attorney’s Advice About the “Risk” of Immigration Consequences May Constitute Ineffective Assistance of Counsel

Criminal defense attorneys representing non-citizen defendants are obligated to provide advice regarding the immigration consequences of a plea or guilty verdict. The Supreme Court’s decision in Padilla made it clear that failure to do so constitutes ineffective assistance of counsel.

This is because a conviction may render a defendant removable (subject to deportation), inadmissible or both under complex immigration laws. Aggravated felonies, for instance, subject a defendant to mandatory removal. Importantly, an experienced and inventive defense attorney may be able to negotiate a plea to charges with no immigration consequences. Regardless of whether a non-citizen defendant faces trial or decides to plead, the decision must be made with full understanding of the immigration consequences. The question is how specific that advice must be; is it sufficient to advise a client that a conviction may or could result in removal/deportation?

Defense attorneys should take note of a recent First Department decision, People v. Doumbia. In this New York state appeal, the Court held that Doumbia’s attorney’s advice that he “could” be deported, when his guilty plea for attempted robbery made deportation a certainty, constituted ineffective assistance of counsel. Interestingly, Doumbia did not file a CPL 440.1 motion, but made his ineffective assistance claim on direct appeal. The dissent argued that because there might be avenues for avoiding even mandatory deportation, such as youthful offender treatment, an attorney’s duty under Padilla is only to inform the client that there is a risk or possibility that he or she may be deported. The majority, however, opined that such a standard not only undermined the Sixth Amendment protection afforded the non-citizen defendant, but would also conflict with the concept of a “truly informed” plea bargain. Lawyers have an affirmative duty to inform clients about the consequences of criminal convictions with as much specificity as possible.

Doumbia makes clear how important it is for noncitizen defendants facing criminal charges to have experienced counsel explain the immigration consequences of a plea; whatever post plea strategy counsel may have under the circumstances, the client must first be made aware that for certain convictions, removal/deportation is not merely a risk or a possibility, but mandatory. Unfortunately, in many cases defense attorneys do not fully investigate immigration consequences or put the onus on the client to seek the advice of immigration counsel.

At the Law Offices of Robert G. Stahl, the attorneys are experienced in representing noncitizens charged with state and federal crimes, and can fully and specifically advise clients on the immigration consequences of a conviction so that the client can make a knowing and informed decision. We frequently negotiate with prosecutors to charge defendants alternatively to avoid immigration consequences, to limit loss in certain fraud cases, or otherwise minimize or eliminate the risk that our client might face exile from their family through removal.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.