The U.S. Supreme Court recently made a landmark decision in which it recognized that a non-citizen charged with a criminal offense has a constitutional right under the Sixth Amendment to receive competent advice from his or her counsel as to the potential immigration consequences - such as deportation - regarding a plea. The decision leaves a significant impact on both criminal defense attorneys' obligations to their clients, and immigration attorneys and their role in the process.

The case, Padilla v. Kentucky, 599 U.S. (March 31, 2010), involved a lawful permanent resident of the United States who had immigrated from Honduras more than 40 years ago and had served in the U.S. military. He was arrested for transportation of a large quantity of marijuana in Kentucky and pled guilty to the offense.

In a post-conviction challenge, Padilla claimed that his criminal defense attorney had told him that he need not worry about losing his immigration status due to the conviction, as Padilla had had a green card for such a long period of time.

In reality, the conviction involving controlled substances is, without question, classified as a deportable offense and, if deemed a trafficking crime, could rise to the level of an "aggravated felony" under the U.S. Immigration Law, which causes nearly automatic deportation. Padilla would not be eligible for a hearing on whether a longtime permanent resident would in a court's exercise of discretion merit a second chance.

The Supreme Court found that, given the impact on a resident of the consequences of a criminal disposition on a non-citizen's future in the United States, "as a matter of federal law, deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed ... ."

In framing the issue in this manner, the court altered the framework significantly. No longer should deportation be considered a "collateral consequence" of a conviction. Instead, the court mandated that a non-citizen must be informed by his or her criminal defense counsel if a plea of guilty carries with it the risk of deportation.

Moreover, the court made clear that it did not limit its holding only to "affirmative misadvice," as was the case in several circuits, including the Second Circuit, because such a holding would encourage criminal defense counsel to remain silent on the question of the immigration consequences of a conviction. And it would likely deprive non-citizen defendants of the information that would be critical to them in deciding whether to plead guilty or proceed to trial.

In finding that the Sixth Amendment right to effective counsel applies to require counsel to inform his or her client whether a plea carries the risk of deportation, the court expanded the obligation of criminal defense attorney to client. While it stated that "professional norms" have called for criminal counsel to provide this advice over the past 15 years, and that the vast majority of the criminal defense bar is already providing this advice, it is now a Constitutional mandate that such advice be provided.

How should a criminal defense attorney meet this mandate? At minimum, a basic understanding that deportation consequences may arise from a criminal conviction for a non-citizen defendant must be factored as a vital component to an evaluation of a plea offer. No longer is an approach of "ignoring the issue" acceptable. Where, as in the case of Mr. Padilla, the consequence is clear, the court has mandated that the advice must be correct.

Immigration counsel can provide a key ingredient to this recipe. Because the Federal Immigration law has become increasingly complex and the ramifications of a conviction have become increasingly severe, it is paramount to have an attorney who is extremely knowledgeable on these issues to analyze the plea offered and provide counsel on the immigration consequences of the plea , which are now constitutionally mandated by the Supreme Court.

A recent example of a matter I handled may be helpful to illustrate this principle: A non-citizen client with no prior criminal history was arrested after an ill-advised "night on the town" and charged with attempted rape in the first degree/forcible compulsion and assault in the third degree (with intent). The attempted rape charge carried with it not only the severe criminal penalty but, if convicted, the client would have also faced automatic deportation and a bar to return to the United States in the future.

Moreover, the "lesser included" charge also carried an adverse immigration consequence, as assault "with intent" had been recently found to be a "crime involving moral turpitude." With a possible sentence of one year in prison for the offense and because the client had been in the United States for less than five years, this conviction would likewise lead to the client's removal from the United States.

After reviewing these legal issues, I explained the consequences to the criminal defense counsel and provided two possible alternative solutions: the first, that a plea of guilty to reckless assault would likely avoid a finding of the offense being deportable; and the second, that imprisonment of less than six months for intentional assault would permit the offense to be deemed a "petty offense" and minimize the impact on the client's immigration status.

Armed with this information, the criminal defense attorney was able to negotiate a plea to reckless assault and a term of imprisonment of 90 days. Upon our presentation of the disposition of the criminal proceeding to U.S. Immigration and Customs Enforcement ("ICE"), no removal/deportation proceedings were brought against the client as ICE agreed that the disposition did not result in a removable offense.

Together, criminal defense counsel and immigration counsel were able to reduce the charge from a possible aggravated felony to no removal consequence at all. While not every case can be this successful, it is clear from this example why the Supreme Court has mandated that effective assistance of counsel requires analysis of immigration consequences for a non-citizen defendant.

Eric Schultz is of counsel with Hiscock & Barclay LLP and concentrates his practice on U.S. Immigration and Nationality Law. He can be reached at eschultz@hblaw.com or (716) 566-1412.