Padilla v. Kentucky’s Inapplicability to Undocumented and Non-Immigrant Visitors

Abstract

The Supreme Court’s recognition in Padilla v. Kentucky that the Sixth Amendment right to counsel requires criminal defense attorneys to advise noncitizen defendants of the possibility of deportation prior to pleading guilty promises to lift the veil of misinformation from many plea negotiations. This promise, however, means little to undocumented people and non-immigrant visitors because they lack a critical characteristic that animated the Padilla Court: the right to remain in the United States indefinitely. Padilla’s advice mandate, this essay therefore argues, does not apply to undocumented individuals and non-immigrants facing criminal charges, continuing to leave them subject to the perils of incorrect or incomplete advice.

Keywords: Padilla v. Kentucky, Sixth Amendment, right to counsel, ineffective assistance of counsel, effective assistance of counsel, crimmigration, immigration law, criminal procedure