Immigration Law

Office of Immigration Litigation Releases Reference Guide on Immigration Consequences of Criminal Convictions

The Department of Justice Civil Division's Office of Immigration Litigation, Appellate Section, has released a monograph that constitutes a "comprehensive overview of the provisions of the Immigration and Nationality Act that are relevant to criminal aliens." OIL describes this reference guide as a "brief, cogent, and clear introduction that identifies and summarizes the relevant statutes." It is intended to assist defense counsel, as well as federal and state prosecutors and judges.

The Supreme Court's 2010 decision in Padilla v. Kentucky ( subscribers/FREE Case Law version) held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. The Court concluded that defense counsel's failure to advise, or misadvice to, a client regarding the immigration consequences of the plea, might constitute ineffective assistance of counsel under Strickland v. Washington, which may be a basis for withdrawing a guilty plea and vacating a conviction.  According to OIL, the guide is neither an attempt to interpret the scope and applicability of Padilla, nor an in-depth analysis of issues. OIL acknowledges that "administrative and judicial precedents on immigration matters are far from uniform, and determining what precedent to apply might be difficult because the removal proceeding may not be completed in the same jurisdiction as the criminal proceeding."

The 90+ page monograph, "Immigration Consequences of Criminal Convictions: Padilla v. Kentucky," is available at civil/oil/OIL_Padilla_Reference_Guide.pdf .

[This is an excerpt from the October 2, 2010, issue of Bender’s Immigration Bulletin.]

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