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Some Effects Of Padilla Warnings On Non-Citizens

by Peter S. Kollory, Esq.

The recent Supreme Court decision, Padilla vs. Kentucky, 555 U.S. ________ (2010), was written by Justice John Paul Stevens, a long awaited right done after countless wrongs in the past. Now, no longer will an unwary non-citizen suffer plight of removal unknowingly for lack of competent legal advice.

This decision, Padilla, casts the obligation of informing the non-citizen on the attorney in a criminal action of the dire consequences of the certainty of removal from this country prior to that defendant pleading guilty. It is analogous to Miranda warnings before arrest and in this context of removal is an integral part of the right of "effective assistance of competent counsel" under Strickland v. Washington, 466 U.S. 668 (1984), in a criminal action for non-citizens. A point in tangent and yet critical is what immigration consequences belie when a non-citizen is pleading guilty to quasi criminal charges in a lower court. For instance, a drug related charge of possession of Marijuana of more than 30 grams becomes deportable under 8 U.S.C. Section 1227 et seq.. Generally, the determinant is the length of jail-time sentencing of a year or more. However, a distinction is to be drawn that the "conviction" under the state law does not coincide with the federal immigration law that is broader, thus the complexity of immigration consequences, 8 U.S.C. Section 1101(a)(48). As such, a lower class of crime under the State law might fit the bill for removal under immigration laws.

Other major aspect in the shadows of Padilla is the "adjustment of status" for permanent residency petitions for non-citizens. One may not be deported as a consequence of pleading guilty in a criminal or quasi criminal action and yet suffer adversely while pursuing Adjustment of Status under 8 U.S.C. Section 245 et seq. Any conviction, arrest, and punishment requires explanation implying that State's rehabilitative statute or the expungement procedures which carry different connotations for immigration purposes, even if one has had the "conviction" expunged. A note of caution in such explanations by the applicant for Adjustment of Status may not always be exculpatory.

Last point under Padilla is the effect the guilty plea may have on the citizenship proceedings as a crime of moral turpitude ("CIMT"). If one pleads guilty to a criminal or a quasi criminal charge, and assuming he was not removed as a consequence, CIMT bars citizenship for a look-back period of at least five years from the time of application, sometimes longer depending on the crime and the totality of the petition within the discretion of USCIS, 8 C.F.R. 336 et seq. As CIMT is not defined by statute, we have to rely on case law which varies depending on the state complicating the implications of pleading guilty to such criminal charges.

But for now under Padilla, it is a right to receive warning of removal for non-citizens under the rubric of effective assistance of competent counsel in criminal matters. A welcome redress of the harshest punishment of removal from the country without any warning, a thing of the past. Concomitantly immigration law has become a sine qua non for criminal lawyers representing non-citizens.

About The Author

Peter Kollory, Esq. is a solo practitioner in general civil practice with focus on migration practice since 15 years in New Jersey. Please visit for details or call 732-906-1010.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.