May-June 2010

Collateral damage: guilty pleas, deportation, and Padilla v. Kentucky

David C. Newell

Assistant District Attorney in Harris County

Physicists have recently proven the existence of parallel universes.1 I bring this up only because after the recent Supreme Court decision Padilla v. Kentucky, a plea might become involuntary if a defense attorney fails to advise his client how that guilty plea might be affected by alternate realities.

    OK, that’s clearly an exaggeration. I’ve been watching too much Lost. However, Padilla does seem to represent a break with our previously accepted plea-bargain reality. Texas courts had typically required that a defendant only be informed of the direct consequences of his plea.2 After Padilla a defense attorney can render ineffective assistance for failing to properly advise his client about deportation consequences of his guilty plea, a consequence that Texas courts had previously regarded as “collateral.” The impact of this decision on Texas law should be muted in the context of deportation consequences, but an examination of Padilla could help discover if the opinion has opened any wormholes to collateral attacks on the voluntariness of guilty pleas.

The perfect imperfect plea

“Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War.” That’s the way Padilla begins. With a cold open like that, you know where this show is headed, particularly when it’s written by Justice Stevens.

    Padilla pleaded guilty to transportating a large amount of marijuana in his tractor-trailer, but his attorney told him that he did not have to worry about his immigration status because he had been in the country so long. In reality, pleading guilty made deportation virtually mandatory. The Supreme Court of Kentucky held that trial counsel’s performance was not deficient because he had no duty to properly advise his client about a “collateral” consequence of his plea, namely the possibility of deportation.

    The United States Supreme Court seemed to reject this distinction and held that the failure to advise a client of the deportation consequences of a plea falls below prevailing professional norms, regardless of whether deportation is a direct or collateral consequence of the plea.3 Justice Stevens, writing for a five-judge majority, first set out the change in immigration law over the last 90 years. He noted that there used to be a narrow class of deportable offenses, and judges once wielded broad discretionary authority to prevent deportation. Now, the “drastic measure” of deportation or removal is “virtually inevitable” for a vast number of noncitizens convicted of crimes. According to the majority, the importance of accurate legal advice for noncitizens accused of crimes has never been more important because these changes in the law have raised the stakes of a noncitizen’s criminal conviction.

    The majority then went on explain that the court has never applied a distinction between direct and collateral consequences when considering “reasonable professional assistance” under Strickland v. Washington. Given this position, it seems odd that they would then affirmatively duck the issue of whether such a distinction is even appropriate, but that’s just what they did. Leaving that open question aside, the majority instead explained that deportation has such a close connection to the criminal process that it is uniquely difficult to classify it as either a direct or a collateral consequence. Concerning “the specific risk of deportation” the collateral versus direct distinction is ill-suited to evaluating an ineffective assistance claim.

    Instead, the majority set up a system where courts will now have to analyze whether the immigration consequences of a plea are clear and explicit by holding that trial counsel must accurately inform a client whether his guilty plea carries a risk of deportation. The majority noted that numerous bar association guidelines already stress the importance of advising clients of the risk of deportation. Additionally, the majority noted the apparent ease with which Padilla’s attorney could have uncovered how a guilty plea would have affected his client’s immigration status. According to the majority, the terms of the relevant immigration statute were succinct, clear, and explicit in setting out that deportation would be automatic upon Padilla’s guilty plea. In contrast, the majority notes that when deportation consequences are unclear or uncertain, a practitioner need only advise that pending criminal charges may carry a risk of adverse immigration consequences.

    Applying the traditional Strickland analysis to Padilla’s case, the majority held that trial counsel’s total failure to advise his client that a guilty plea would result in deportation fell below prevailing professional norms. Thus, an attorney who tells his client he doesn’t have to worry about deportation when the law clearly says that he does will render deficient representation. But if there’s any ambiguity in the statutes authorizing deportation, an attorney who merely conveyed that a guilty plea carries a risk of possible deportation will have rendered constitutionally sufficient representation. The court then remanded the case to the lower court to determine if trial counsel’s deficient performance prejudiced Padilla.


Justice Alito, along with Chief Justice Roberts, concurred in the judgment because Padilla’s attorney had not just failed to advise his client, but he had also affirmatively misrepresented the deportation consequences of his client’s plea. Indeed, the concurrence did not agree with the majority’s position that an attorney renders constitutionally deficient performance by failing to affirmatively explain the immigration consequences of a guilty plea to his client. The concurring opinion would have simply required defense counsel to refrain from unreasonably providing incorrect advice and referring clients to immigration attorneys for specific advice.

    Justice Alito also criticized the majority for abandoning the longstanding and unanimous position that defense counsel generally need advise a client about only direct consequences of a criminal conviction. There are a wide variety of collateral consequences beyond removal, such as civil commitment, civil forfeiture, disenfranchisement, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and the lost of business or professional licenses. The Sixth Amendment, according to the concurrence, had never before required a criminal defense attorney to advise clients about such matters, and it shouldn’t now.

    Finally, the concurrence argued that discovering whether a guilty plea will render an alien removable will often be quite complex, and keying the test for deficient performance on whether the law on removal is succinct and straightforward is more problematic than the majority acknowledged. First, attorneys who are not well versed in immigration law will have a difficult time being sure a statutory provision properly applies in a particular case. Second, an attorney who advises his client about only one possible consequence, such as removal, could actually mislead his client by failing to explain additional, serious consequences. Third, the majority’s rigid constitutional rule could head off legislative action that could be more narrowly tailored to address concerns about informed plea-bargaining. Fourth, the holding casually dismisses the longstanding and unanimous position of the lower federal courts with respect to the scope of criminal defense counsel’s duty to advise on collateral consequences.

What about Article 26.13(a)(4)?

While Padilla is really an ineffective assistance case rather than an involuntary plea case, the required statutory admonishments so helpful in ensuring a voluntary plea should also make it difficult for a defendant to show prejudice from his attorney’s lack of advice. In Texas, the trial court is required to admonish a defendant that “a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.”4 If the trial court does not admonish a defendant about these possible consequences before the defendant pleads guilty, that plea is subject to reversal. This was so even before Padilla.5 After Padilla, both the trial court and the defense attorney have a duty to advise a pleading defendant. Now, a defense attorney must advise his client that a plea will result in deportation if it’s clear and unambiguous that such deportation is automatic upon the plea of guilty. However, if the law is not clear or explicit, defense counsel merely has to inform his client that he may be subject to removal. The admonishments in article 26.13(a)(4) should cover circumstances where the likelihood of deportation is unclear and make it very difficult to show that an attorney’s failure to advise his client resulted in prejudice in situations where immigration statutes don’t clearly and explicitly require removal.

    Of course, trying to figure out whether a court will ultimately determine that an immigration law clearly applies to a particular situation may be a little like trying to hit a bullet with a smaller bullet while wearing a blindfold riding a horse.6 If Justice Alito’s concurrence is any guide, conflicting authorities about whether a state offense rises to the level of an “aggravated felony” or “crime involving moral turpitude” should demonstrate sufficient ambiguity for the trial court’s admonishment to adequately inform a defendant of the collateral consequences of his guilty plea. Similarly, a defendant whose citizenship is “derivative” or who was placed on deferred may not be an alien subject to removal for a “conviction,” and courts should be willing to forgive less detailed advice from attorneys in such circumstances. Hopefully this will be the case in most circumstances given that every justice on the Supreme Court acknowledges that immigration law is so complex that it is a legal specialty of its own.

    But some misdemeanors could open up a defendant to removal, and article 26.13(a)(4) applies only to felonies, leaving trial courts with no constitutional or statutory duty to admonish defendants that their guilty plea may result in deportation.7 For example, a conviction for a Class A misdemeanor such domestic violence assault can subject a defendant to deportation.8 While the Court of Criminal Appeals notes that it is “better practice” for trial courts to admonish misdemeanor defendants about the immigration consequences of their plea, they currently are not required to do so. In those circumstances, it’s all on the defense attorney. If the trial court chooses not to give such admonishments, it may be easier for a misdemeanor defendant to demonstrate prejudice from his attorney’s lack of deportation advice. Consequently, prosecutors would be well advised to either urge trial courts to admonish a misdemeanor defendant on deportation consequences or get some indication from defense counsel (on the record if possible) that he has advised his client of the possibility that his guilty plea could result in deportation.

    And beyond whether the trial court informs a defendant that he may be deported, Padilla imposes a duty on trial counsel to tell a defendant that his guilty plea will result in deportation when it is clear and easily ascertainable that it will. While this requirement seems obvious and simple enough, it raises the question of whether the trial court’s admonishments that a guilty plea may result in deportation is a strong enough admonishment to overcome any deficiencies in the advice given (or not given) by trial counsel when deportation is certain. Arguably the trial court’s admonishment that a defendant may be deported as a result of his guilty plea in the absence of affirmative advice to the contrary from his attorney would be enough to render a defendant’s plea knowing and voluntary, but that issue will have to be litigated before practitioners can be sure.

    Fortunately, Padilla may provide some guidance in this regard. The majority noted that Padilla’s trial counsel could have determined that his plea made him eligible for deportation “simply by reading the text of the statute.” It seems that getting some recitation on the record that trial counsel has read 8 U.S.C.A. §1227 to determine whether a guilty plea will result in deportation is a very quick way to make Padilla factually distinguishable. Of course the question of whether simply reading the statute and advising a client according to that statute amounts to a bare minimum of competent representation will have to be litigated in the future. Still, it’s a place to start.9

What about sex offender registration?

Interestingly enough, Padilla may not represent a significant break from our current sex offender admonishment realities. Trial courts are currently required to advise defendants that they will be required to register as a sex offender when they plead guilty to certain crimes.10 Additionally, in Mitschke v. State, the Court of Criminal Appeals has already held that sex offender registration is a direct consequence, rather than a collateral one, of a guilty plea, so prosecutors could not have argued that distinction even if Padilla had recognized the distinction as valid.11 Moreover, the court has held that the trial court’s failure to advise a defendant about the possibility of registering as a sex offender does not render a plea involuntary, absent a showing of harm, because sex offender registration is not a “penalty” due to its remedial and civil nature.12 In contrast to Mitschke, the Supreme Court in Padilla regarded deportation as a “penalty” even though it is not criminal in the strictest sense. Nothing in Padilla seems to undermine the Court of Criminal Appeals’ current take on sex offender registration, namely that the trial court’s failure to admonish won’t render a plea involuntary unless there’s some showing that a substantial right is affected.13

Where will it stop?

Both Justice Alito’s concurrence and Justice Scalia’s dissent noted that the majority appeared to abandon the distinction between a plea’s direct and collateral consequences. As mentioned above, Justice Alito lists a variety of consequences to a guilty plea that could be regarded as collateral. Justice Scalia notes that the only thing limiting that list is judicial caprice and that practitioners can expect years of elaboration upon these new issues in the lower courts. Prosecutors, defense attorneys, and trial courts can hardly be criticized for wondering where this will end.

    Unfortunately, the majority opinion sends some mixed messages in this regard. On the one hand, Justice Stevens broadly proclaims that the court has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” That may be true, but pretty much every other court has. Indeed, the Court of Criminal Appeals has held that the ignorance of a collateral consequence does not render a plea involuntary.14 Courts of appeals have held that trial counsel does not render ineffective assistance of counsel for failing to advise his client of the deportation consequences of his plea because deportation is a collateral consequence.15 Obviously cases that base their holdings upon the premise that deportation is not a collateral consequence must be re-examined in light of Padilla to see if they are still good law.

    But even after this sweeping declaration that there is no distinction between direct and collateral consequences, the majority indicates that it is not deciding whether the distinction between direct and collateral consequences is even appropriate. Deportation consequences can’t be categorized as either direct or collateral consequences because of their close connection to the criminal process.16 While this opinion certainly invites creative litigation in the future to determine just which consequences are so “closely connected to the criminal process” that a defense attorney must advise his client about them, it also highlights the attempts by the majority to render a holding limited to the issue of deportation consequences. Prosecutors can credibly argue against a reading that expands the case’s holding beyond the context of attorney advice about mandatory removal due to a guilty plea.

    As for what makes something “closely connected,” the majority provides little guidance other than an earnest desire that non-citizen defendants be informed that they might be deported. The court did note the severity and the automatic nature of the penalty as well as a long history of deportation consequences being enmeshed with criminal convictions. But are these factors in a test? What makes a result “automatic?” What makes an otherwise collateral consequence “enmeshed” with a criminal conviction? For example, a conviction for abandoning or endangering a child is a ground for termination of parental rights, but the ground must still be proven by clear and convincing evidence,17 and there must also be a finding that termination is in the child’s best interest.18 It may be a severe penalty from the perspective of the parent-defendant, but what about from the child’s point of view? And does the procedure-heavy nature of termination proceedings mean that the result isn’t “automatic” in the same way that deportation is? Does the history of family law suggest that termination of parental rights proceedings are “enmeshed” with the criminal conviction? Such questions could be asked of any consequence beyond those relating to the sentence itself.19 That is, of course, if courts interpret Padilla as broadly announcing a new test to replace the traditional direct/collat-eral consequences distinction rather than about mere deportation. Prosecutors have a credible argument that Padilla is limited to advice regarding deportation consequences. Unfortunately, time and litigation are necessary to vindicate that position.


Padilla v. Kentucky has imposed upon defense attorneys a massive duty to properly advise their clients of the possible deportation consequences attendant to a guilty plea. While trial court admonishments may help ease that burden and make a showing of prejudice harder, many unanswered questions remain about exactly how much advice a defense attorney must give regarding deportation. Making sure that defense counsel has at least looked at the list of deportable offenses under 8 U.S.C.A. §1227 provides a good starting point that quickly makes Padilla distinguishable, but time will tell if it is sufficient to ensure a plea is knowing and voluntary. One thing is for sure, defense attorneys don’t have to advise their clients about alternative realities. At least not yet.


2 Mitschke v. State, 129 S.W.3d 130 (Tex. Crim. App. 2004)/
3 Padilla v. Kentucky, ___ S.Ct. ___, 2010 WL 1222274 (March 31, 2010)/
4 Tex. Code Crim. Proc. Ann., art. 26.13(a)(4) (Vernon 2003)/
5 Vannortrick v. State, 227 S.W.3d 706 (Tex. Crim. App. 2007)/
6 Star Trek (Paramount 2009).
7 State v. Jimenez, 987 S.W.2d 886 (Tex. Crim. App. 1999). While the Court of Criminal Appeals did note that there is no constitutional requirement for judicial admonishment in misdemeanor cases, the Court also expressed its opinion that admonishing felony and misdemeanor defendants on the immigration consequences of a guilty plea is clearly the better practice. See also Meraz v. State, 950 S.W.2d 739 (Tex. App.—El Paso 1997, no pet.) (noting that “most judges follow the commendable practice of admonishing defendants in misdemeanor cases.”).
8 8 U.S.C.A. §1227(a)(2)(E)(i) (West 2008). Of course, I’m not an immigration lawyer, I’m just reading the statute, so take what I say with a grain of salt.
9 As I write this article I am shivering because my office is so cold. This has nothing to do with the article. I just wanted to let you know.
10 Tex. Code Crim. Proc. Ann., art. 26.13 (a)(5) (Vernon 2003).
11 Anderson v. State,182 S.W.3d 914, 918 (Tex. Crim. App. 2006); Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004).
12 Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). The Court of Criminal Appeals based this holding upon a United States Supreme Court case that held sex offender registration is remedial or civil in nature. Smith v. Doe, 538 U.S. 84, 96, 123 S.Ct. 1140, 1149 (2003). Note Justice Kennedy wrote the majority opinion.
13 The Court of Criminal Appeals has held, albeit in an unpublished opinion, that misadvising a client about possible termination of sex offender registration amounted to ineffective assistance of counsel. Ex parte Covey, 2010 WL 1253224 (Tex. Crim. App. March 31, 2010). However, this holding deals with affirmatively wrong advice and is otherwise consistent with Padilla. Thus, Padilla would not have changed the way we already evaluate the issues in Covey.
14 Jimenez, 987 S.W.2d at 888; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (listing different collateral consequences of a guilty plea).
15 See e.g. Perez v. State, 31 S.W.3d 365, 367 (Tex. App.—San Antonio 2000, no pet.); Hernandez v. State, 986 S.W.2d 817, 821 (Tex. App.—Austin 1999, pet. ref’d).
16 One could argue that the difference between a “close connection” and a “direct consequence” is a largely semantic one. Labeling deportation consequences as “closely connected” has the same practical effect as labeling it a “direct consequence.”
17 Tex. Fam. Code Ann. §161.001 (Vernon 2003).
18 Id.
19 In case you were wondering, the Fourteenth Court of Appeals has previously addressed whether a trial attorney renders ineffective assistance of counsel when he fails to advise of possible termination of parental rights. Talbott v. State, 93 S.W.3d 521 (Tex. App.—Houston [14th Dist.] 2002, no pet.). As you’d expect, the court of appeals held that trial counsel was not ineffective because he has no duty to advise his client of collateral consequences of his plea.