Advising Clients after Padilla v. Kentucky (2010) 130 S. Ct. 1473

Advising Clients after Padilla v. Kentucky (2010) 130 S. Ct. 1473 – Some Advice from an Immigration Expert

An interview of immigration law specialist, Mary Waltermire, by Timothy E. Warriner

After Padilla v. Kentucky, counsel has an enhanced duty to investigate and accurately advise the client concerning the immigration consequences that may result from a plea bargain. In this article, immigration attorney Mary Waltermire discusses how to protect the client from immigration consequences. Ms. Waltermire is certified as an Immigration and Nationality Law Specialist by the California Board of Legal Specialization of the State Bar of California. A good part of Ms. Waltermire’s practice involves working with defense counsel in criminal cases in order to minimize the immigration consequences to the client. Her firm, Shoenleber & Waltermire, is based in Sacramento.

Q: How can a criminal defense lawyer minimize any harm to a client’s immigration status?

The first thing counsel must do is interview the client to determine the client’s immigration status. Just because a client speaks perfect English does not mean the client is not facing immigration consequences if convicted. Defense counsel must use the initial client interview as an opportunity to discover the client’s immigration status.

Q: What types of information does counsel need to get from the client?

Counsel must discover whether the client is a citizen of the United States or has another status. Ask where the client was born—was the client born outside of the United States? What is the client’s legal status, if any? Are the client’s parents United States citizens by birth or naturalization? Did the client’s parents become citizens prior to the client’s 18th birthday? Counsel must make these inquiries even if the client has already been deported, as there are documented cases where actual United States citizens have been erroneously deported. If possible, obtain copies of any documents demonstrating the client’s legal status. All of this information will be essential if you consult with an immigration attorney about the possible immigration consequences of a conviction.

Q: Must defense lawyers obtain expert assistance from a qualified immigration attorney?

If at all possible counsel should seek assistance from an immigration attorney who has experience advising clients about immigration consequences. Some public defender’s offices contract with immigration counsel. Defense counsel should not hesitate to seek assistance from an immigration attorney who is qualified to advise clients about the immigration consequences of criminal convictions. Immigration law is constantly changing, and new immigration decisions can dramatically impact the client. This is a very specialized area of law. If your office does not contract with an immigration attorney, you should advise the client to retain an immigration attorney. One source to find a qualified immigration attorney is the certified specialist listing on the State Bar website.

Although I would not advise defense counsel inexperienced with immigration matters to advise the client without first seeking input from a qualified immigration attorney, there are publications helpful to defense counsel. The Immigrant Legal Resource Center in San Francisco has a public defender list serve and puts out some good publications. Their website is However, as this area of law is continually changing defense counsel should be careful not to rely on out of date material.

Q: How does the Obama Administration policy to permit some undocumented persons to lawfully remain in the United States affect counsel’s duties?

On June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the United States as children. This policy is called the Deferred Action Status Program. Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them. So even though deferred action does not provide a pathway to getting lawful permanent resident status or citizenship, it will allow young people to remain in the United States and apply for permission to work.

Defense counsel should be aware of the requirements for the Deferred Action Status Program. If a client may be eligible, defense counsel must attempt to reach a plea bargain that will preserve the client’s right to apply. To qualify for deferred action, the client must: 1) be 30 years old or younger on June 15, 2012; 2) have entered the U.S. when he or she was under age 16; 3) have been physically present in the U.S. on June 15, 2012 and continuously resided in the U.S. during the preceding five years; 4) be currently in school or have graduated from high school or obtained a GED, or have been honorably discharged from coast guard or armed forces; and 5) not have been convicted of a felony, significant misdemeanor, or multiple misdemeanors, and not pose a threat to public safety or national security.

Given the potential for an otherwise eligible client to be excluded from deferred action, it is important for counsel to avoid a felony, serious misdemeanor or multiple misdemeanor disposition. Offenses involving firearms, drunk driving, drug possession, and petty theft will all render a client ineligible for deferred action. Diversion programs will be considered a conviction, and thereby render the client ineligible, if the client pleads guilty or no contest before beginning the program. Safe plea resolutions would involve pleas to infractions, trespassing, or disturbing the peace. Gang offenses would pose a danger that the client will be considered a threat to public safety or national security. This is a developing area of law and is complex. The client should be advised to retain an immigration attorney. If the client is unable to afford an immigration attorney, counsel should independently consult with an immigration expert in order to ensure that the client is not excluded from deferred action.

Q: Do you have any other words of advice to defense counsel who represent immigrant clients?

Just spending a bit of time and asking the right questions can make a huge difference to the client down the road. Defense counsel must not assume that a client is a United States citizen just because the client speaks without an accent. Counsel must determine the immigration status of each client and rule out the possibility of immigration consequences. Defense attorneys must then understand what plea-bargains are possible in order to avoid harm to the client’s status, or preserve the client’s ability to seek naturalization, deferred action, or other legal status. Advice from a qualified immigration attorney will help you to understand the options available. Do not get frustrated or give up too easily. Creative solutions are sometimes possible in even serious cases and some prosecutors are sympathetic to immigration concerns and will work with you.