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Advising Defendants of Deportation Consequences

“Will I be deported for this?” Hands down, this is the most common question asked by someone who is not a United States citizen after they are slapped with criminal charges.

As a criminal defense lawyer, having a definitive answer for that vital question is not always required. Only if deportation consequences are “truly clear,”[1]  then the lawyer must advise the defendant as such. Otherwise, the attorney only needs to advise a defendant that pleading guilty to a crime could result in adverse immigration consequences.

Recently, the Minnesota Supreme Court granted review of a case analyzing the “truly-clear” standard. That case is Herrera Sanchez v. State. In this case, Herrera Sanchez contends that his lawyer did not effectively assist him. The contended attorney failure: not informing Herrera Sanchez that he would certainly be deported for pleading guilty to third degree criminal sexual conduct.

During Herrera Sanchez’s plea, his lawyer recited what is on plea petitions in virtually every courtroom across Minnesota: “Do you understand that as a result of a plea in this particular matter that, if you’re not a citizen of the United States, a plea of guilty could result in either deportation, exclusion from admission to the United States, or denial of citizenship?” Herrera Sanchez responded affirmatively.   

At the court of appeals, Herrera Sanchez argued that under the Immigration and Nationality Act (INA), his deportation was “an absolute certainty” and not simply a possibility. The court of appeals rejected the argument by stating the terms of the relevant immigration statute are not “succinct, clear, and explicit” as used in Padilla. The court reasoned that the INA lists several classes of federal crimes that qualify as aggravated felonies, but Herrera’s trial counsel “could not have simply examined the relevant statute or analyzed binding caselaw to determine that [his] conviction was an aggravated felony.” A point that will certainly be hotly debated in briefs and arguments at the supreme court.

The court of appeals concluded that a “criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” (citing Padilla). The court went on to state that because Herrera Sanchez’s plea counsel informed him that “he ‘may’ be deported, counsel’s performance was not objectively unreasonable.”

Today, tomorrow, and every day thereafter, attorneys will be advising clients they may face adverse immigration consequences for pleading guilty to a crime.[2] Many criminal defense lawyers will advise those clients to seek advice from an immigration attorney before pleading guilty, or call an immigration attorney themselves. Regardless, Padilla is still the standard. Reciting the standard language on court issued plea petitions verbatim may not be sufficient to avoid ineffective assistance of counsel. We will see where the Minnesota Supreme Court draws the line when it decides Herrera Sanchez.

Robert H. Ambrose is a criminal defense attorney in Minneapolis. He frequently represents individuals charged with crimes with potential immigration consequences. Contact our office for a free and private consultation.

[1] The “truly clear” standard was set forth by the United States Supreme Court in 2010 in Padilla v. Kentucky. In Padilla, the Supreme Court decided that Padilla’s lawyer had a constitutional obligation to advise him that “the offense he was pleading guilty to would result in his removal” from the United States. The Court determined it was “truly clear,” under an objectively reasonableness standard, Padilla would be deported.

[2] Crimes involving moral turpitude are frequently referenced as crimes that carry adverse immigration consequences. The U.S. Department of Foreign Affairs catalogs crimes involving moral turpitude here.

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