by Kar­tik Sameer Madi­ra­ju 1

Attor­neys hold extra­or­di­nary pow­ers with­in the legal sys­tem, not the least of which is the near­ly (though not total­ly) dis­pos­i­tive nature of the advice they give to their clients. In com­plex dis­putes involv­ing statutes that are not wel­come to easy inter­pre­ta­tion by the courts them­selves, let alone defen­dants or plain­tiffs, attor­neys act as the gate­keep­er to the infor­ma­tion that will help indi­vid­u­als make deci­sions about their legal issues. In con­trast, where the advice of an attor­ney will deter­mine whether a defen­dant per­forms, say, either one hun­dred or one hun­dred and fifty hours of com­mu­ni­ty ser­vice, ambigu­ous or even erro­neous advice appears less damaging.

How­ev­er, in con­texts where a plea of guilty could result in a prison sen­tence of ten years, fol­lowed by a risk of depor­ta­tion, alle­ga­tions of attor­ney error or mis­lead­ing advice are far from triv­ial. In Mis­souri v. Frye, the Supreme Court not­ed that defen­dants who enter into guilty pleas must do so know­ing­ly and vol­un­tar­i­ly. 2 Implic­it in the “know­ing­ly” prong of the Frye hold­ing is that defen­dants must under­stand the true nature of the con­se­quences of their guilty pleas. 3And these con­se­quences, obvi­ous­ly, are impart­ed to defen­dants by their attorneys.

This arti­cle will argue that in order to respect the def­er­ence giv­en to attor­neys’ strate­gic deci­sions, give accu­rate effect to the Supreme Court’s jurispru­dence, and pro­tect the right of defen­dants to enter into pleas know­ing­ly and vol­un­tar­i­ly, attor­neys should be required to inform their clients only of depor­ta­tion risks, and not pro­vide them with spe­cif­ic chances of removal.


The Sixth Amend­ment of the Unit­ed States Con­sti­tu­tion guar­an­tees all defen­dants the right to the assis­tance of coun­sel. 4Assis­tance of coun­sel means effec­tive assis­tance of coun­sel, as the Court clar­i­fied in John­son v. Zerb­st, and lat­er again in McCann v. Richard­son. 5In order to deter­mine how that com­mand can be applied in prac­tice, courts apply the two prong test from Strick­land v. Wash­ing­ton. 6 First, peti­tion­ers must show that “coun­sel made errors so seri­ous that coun­sel was no longer func­tion­ing as coun­sel.” 7Sec­ond, peti­tion­ers must show that they were prej­u­diced as a result of these errors, such that they were “deprived of a fair tri­al.” 8 The Supreme Court has extend­ed the right to effec­tive coun­sel to plea bar­gain hear­ings as well. 9

Although the Supreme Court has giv­en guid­ance on the issue of what advice must be giv­en to defen­dants who face immi­gra­tion con­se­quences, the cir­cuit courts are still split on what the con­tent of that advice must be. In Padil­la v. Ken­tucky, the Supreme Court applied the Strick­land test to advice on immi­gra­tion con­se­quences, such as depor­ta­tion. 10The Court in Padil­la focused on the first prong of the Strick­land test, and artic­u­lat­ed that “when the law is not suc­cinct and straight­for­ward . . . attorney[s] need do no more than advise . . . that . . . charges may car­ry a risk of adverse immi­gra­tion con­se­quences.” 11 Defen­dants must still prove the prej­u­dice prong of the Strick­land test in order to pre­vail on an inef­fec­tive assis­tance of coun­sel claim. 12 Accord­ing to the Court, col­lat­er­al immi­gra­tion con­se­quences require this height­ened stan­dard because of the sever­i­ty and pos­si­ble per­ma­nence of depor­ta­tion. 13

The com­mand of Padil­la seems fair­ly straightforward—attorneys must tell their clients whether a guilty plea car­ries a risk of depor­ta­tion. In the immi­gra­tion con­text, the Supreme Court has nev­er held that attor­neys are required to guar­an­tee the direct or col­lat­er­al out­comes of their clients’ guilty pleas. The Court in Padil­la wrote that “[To sat­is­fy the Sixth Amend­ment,] we now hold that coun­sel must inform her client whether his plea car­ries a risk of depor­ta­tion.” 14 That pos­tu­late was reit­er­at­ed in Chaidez v. Unit­ed States not­ing that the “Sixth Amend­ment [does not exempt from scruti­ny] a lawyer’s advice (or non-advice) about a plea’s depor­ta­tion risk.” 15

Where the Courts of Appeals have diverged is not on whether attor­neys must inform clients of immi­gra­tion con­se­quences, but on the more nuanced point of what attor­neys must say to sat­is­fy the test in Strick­land as mod­i­fied by Padil­la in the immi­gra­tion con­text, and to hon­or the rights of defen­dants under the ‘know­ing’ prong of Frye. 16 While a major­i­ty of cir­cuits have found that the con­tent of attor­neys’ advice need only state that a guilty plea car­ries a risk of depor­ta­tion, the Third, Fifth Cir­cuit, and Ninth cir­cuits have notably required an addi­tion­al eval­u­a­tion of the like­li­hood of depor­ta­tion. 17

The major­i­ty view is more con­sis­tent with the let­ter and spir­it of the Supreme Court’s hold­ings in Padil­la and Chaidez, but more impor­tant­ly, does not place a bur­den on attor­neys that would force defense coun­sel to stray out­side the bound­aries of their exper­tise in order to sat­is­fy the Sixth Amend­ment. Addi­tion­al­ly, the major­i­ty view remains faith­ful to the exact words of the Padil­la hold­ing, but sig­nif­i­cant­ly, gives due respect to the lay­ers of deci­sion mak­ing that must occur before removal takes place. Because removal of defen­dants who plead guilty to aggra­vat­ed felony is at the dis­cre­tion of the Attor­ney Gen­er­al, the major­i­ty view also respects sep­a­ra­tion of pow­ers con­cerns that attor­neys will now be pre­dict­ing the actions of the Exec­u­tive Branch. Fur­ther­more, in cas­es where depor­ta­tion is not guar­an­teed, attor­neys who feel com­pelled to use strong lan­guage such as “manda­to­ry removal” will actu­al­ly be giv­ing false advice to their clients, plac­ing them in an awk­ward, “Catch-22” sit­u­a­tion: advis­ing of a mere risk would be insuf­fi­cient, but advis­ing of manda­to­ry removal would be affir­ma­tive mis­ad­vice and unconstitutional.


The Strick­land stan­dard for effec­tive coun­sel is “rea­son­able­ness under pre­vail­ing pro­fes­sion­al norms.” 18 Courts must be “high­ly def­er­en­tial” to the deci­sions of coun­sel, because “it is all too easy for a court, exam­in­ing counsel’s defense after it has proved unsuc­cess­ful . . . to con­clude that [coun­sel] was unrea­son­able.” 19The Padil­la Court mere­ly applied this stan­dard to a new con­text, but did not artic­u­late a new Sixth Amend­ment requirement.

In Padil­la, Jose Padil­la was a legal per­ma­nent res­i­dent charged with traf­fick­ing in large quan­ti­ties of mar­i­jua­na. 20 The Immi­gra­tion and Nat­u­ral­iza­tion Act pre­scribes fair­ly harsh con­se­quences for aliens con­vict­ed of “aggra­vat­ed felonies.” Drug traf­fick­ing, except for minor pos­ses­sion amounts of mar­i­jua­na, con­sti­tutes an aggra­vat­ed felony. 21 Whether the statute requires depor­ta­tion (i.e. manda­to­ry removal) is a ques­tion of inter­pre­ta­tion. The Court in Padil­la found that this pro­vi­sion was clear, and that it made Mr. Padilla’s depor­ta­tion “vir­tu­al­ly manda­to­ry.” 22 Padilla’s attor­ney failed to even research the immi­gra­tion con­se­quences or do research of any kind. It was this utter and total fail­ure on the part of the attor­ney that amount­ed to inef­fec­tive assis­tance of coun­sel. In sum, the court artic­u­lat­ed the stan­dard to require that  “when the law is not suc­cinct and straight­for­ward . . . 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. But when the depor­ta­tion con­se­quence is tru­ly clear . . . the duty to give cor­rect advice is equal­ly clear.” 23

Cir­cuits that dis­agree with the “risk” inter­pre­ta­tion of Padil­la rely on that por­tion of the deci­sion ref­er­enc­ing the clar­i­ty of the immi­gra­tion statute. In Unit­ed States v. Bonil­la, the Ninth Cir­cuit found that the immi­gra­tion statute at hand was clear with respect to the depor­ta­tion con­se­quences of plead­ing guilty to an aggra­vat­ed felony. 24 Sim­i­lar­ly, in Unit­ed States v. Rodriguez-Vega, the Ninth Cir­cuit found that because the law was clear with respect to the depor­ta­tion con­se­quences, the defen­dant was enti­tled to advice that informed her that her removal was a “vir­tu­al cer­tain­ty.” 25 The Fifth and Third Cir­cuits have also issued hold­ings that sug­gest that using the words such as “risk” or “pos­si­bil­i­ty” of depor­ta­tion con­sti­tutes a vio­la­tion of the Sixth Amend­ment. 26

On the con­trary, oth­er cir­cuit courts have inter­pret­ed Sec­tion 237(a)(2)(B)(i) of the Immi­gra­tion and Nation­al­i­ty Act dif­fer­ent­ly. 27 Whether the word “deportable” should be con­strued to mean “manda­to­ry removal” is not a set­tled ques­tion, but the minor­i­ty cir­cuits have found that statu­to­ry pro­vi­sions like these clear­ly require depor­ta­tion. 28

To resolve this ambi­gu­i­ty, courts should instead rec­og­nize that the deci­sion to deport remains with­in the aus­pices of the Exec­u­tive Branch, and sep­a­ra­tion of pow­ers coun­sels against read­ing an inter­pre­ta­tion into the statute that may not be the ulti­mate action tak­en. By find­ing con­sti­tu­tion­al the advice that a guilty plea car­ries a risk of depor­ta­tion, courts will be respect­ing the author­i­ty of the Exec­u­tive to stay and can­cel removals, or defer action on depor­ta­tion proceedings.


Both an attorney’s affir­ma­tive mis­rep­re­sen­ta­tions regard­ing the immi­gra­tion con­se­quences their clients face and fail­ure to con­duct any research into those con­se­quences what­so­ev­er would like­ly be char­ac­ter­ized as actions out­side the range of pro­fes­sion­al norms under Supreme Court jurispru­dence. 29 How­ev­er, requir­ing that attor­neys inform their clients that their depor­ta­tion would be manda­to­ry is an inap­pro­pri­ate char­ac­ter­i­za­tion of the Padil­la line of cas­es. Accept­ing this minor­i­ty inter­pre­ta­tion would be prob­lem­at­ic for four reasons.

First, as Jus­tice Ali­to expressed in his con­cur­rence in Padil­la, there is a grow­ing con­cern that attor­neys would be required to pre­dict immi­gra­tion con­se­quences for their clients despite their lack of exper­tise in that field. 30 As a mat­ter of pol­i­cy, such a require­ment can pro­duce absurd results: attor­neys who are not sure if depor­ta­tion is manda­to­ry in a giv­en case will feel pres­sure to advise their clients that removal is cer­tain. This could mis­lead defen­dants into going to tri­al, where they may face increased prison time, heavy fines, and may per­haps still face col­lat­er­al immi­gra­tion con­se­quences thereafter.

Sec­ond, an over­whelm­ing num­ber of aliens are rep­re­sent­ed by pub­lic defend­ers appoint­ed to them under Gideon v. Wain­wright. 31 It is well known that pub­lic defend­ers are inun­dat­ed with case­loads that afford them a cou­ple of hours, at most, and some­times only a few min­utes with their clients. In that time­frame, requir­ing pub­lic defend­ers to under­take the addi­tion­al task of pre­dict­ing the immi­gra­tion con­se­quence or inform­ing clients with pre­cise prob­a­bil­i­ty would dec­i­mate an already crip­pled institution.

Third, as the Strick­land Court not­ed, defen­dants with judg­ments entered against their inter­ests, or those who face neg­a­tive con­se­quences as a result of their guilty pleas, would be eager to renege on their pleas and pro­ceed to tri­al. 32 Allow­ing a claim of inef­fec­tive assis­tance of coun­sel to turn on the pre­cise phras­es and words used by an attor­ney would cre­ate an ille­git­i­mate oppor­tu­ni­ty for defen­dants to re-lit­i­gate their cas­es on the merits.

Final­ly, there is a long his­to­ry with­in the judi­cial sys­tem of giv­ing def­er­ence and great weight to strate­gic deci­sions made by attor­neys with respect to how they advise their clients. In Knowles v. Mirza­yance, the Court stat­ed that the strate­gic deci­sions of coun­sel “rel­e­vant to plau­si­ble options are vir­tu­al­ly unchal­lenge­able.” 33 The grav­i­ty and piv­otal nature of these strate­gic deci­sions is worth not­ing; in Knowles, the deci­sion of the attor­ney was to with­draw an insan­i­ty defense. 34 In oth­er cas­es, deci­sions that were giv­en def­er­ence (there­fore viti­at­ing the inef­fec­tive assis­tance claim) involved a deci­sion regard­ing whether to waive physi­cian-patient priv­i­lege, whether to call an ali­bi wit­ness to tes­ti­fy, or whether to intro­duce more foren­sic evi­dence. 35 If the Court has been will­ing to defer to attor­neys on such cru­cial deci­sions, it would seem obvi­ous that the con­tent and exact words used by attor­neys in the immi­gra­tion con­text should not be sub­ject to such scruti­ny. The per­for­mance of defense coun­sel is “all too easy” to crit­i­cize ex post. 36


Attor­neys mer­it def­er­ence for their strate­gic deci­sions and the advice they give to their clients. With­out any indi­ca­tion that their knowl­edge, exper­tise and expe­ri­ence will be respect­ed, attor­neys would be loathe to give any sort of advice at all, for fear of expo­sure to Rule 11 pro­ceed­ings, Sixth Amend­ment claims, and a vari­ety of oth­er types of lit­i­ga­tion. Or it may cre­ate the per­verse incen­tive to mis­rep­re­sent immi­gra­tion con­se­quences as more severe than in real­i­ty, in order to com­ply with Padil­la.

How­ev­er, attor­neys must also be pre­vent­ed from pro­vid­ing the type of “throat-clear” advice to their clients, thus absolv­ing them­selves of their duties under the Con­sti­tu­tion and under Padil­la.

Giv­en these con­cerns, the Court in Padil­la struck a del­i­cate bal­ance between what infor­ma­tion must be giv­en to defen­dants who face immi­gra­tion con­se­quences. The cor­rect read­ing of Padil­la, and one that the major­i­ty of cir­cuit courts have adopt­ed, requires attor­neys to inform their clients of the risks of depor­ta­tion. To require attor­neys to pre­dict or guar­an­tee cer­tain out­comes for their clients is beyond the scope of the Sixth Amendment’s com­mand, and would be incon­sis­tent with the Court’s jurispru­dence since Strick­land.


  1. Kar­tik Sameer Madi­ra­ju is a 2L Root-Tilden-Kern Schol­ar at New York Uni­ver­si­ty School of Law. This Con­tri­bu­tion is a com­men­tary on the 2016 Prob­lem at the Evans Con­sti­tu­tion­al Law Moot held in Madi­son, Wis­con­sin. The issue in the prob­lem dealt with whether advis­ing a res­i­dent alien that his guilty plea would sub­ject him to a risk of depor­ta­tion was suf­fi­cient advice under Padil­la v. Ken­tucky, and con­sis­tent with the effec­tive assis­tance of coun­sel require­ment of the Sixth Amend­ment. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point of law. Rather, this arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the team the author rep­re­sent­ed at the Evans Con­sti­tu­tion­al Moot Court Com­pe­ti­tion.
  2. 132 S. Ct. 1399, 1406 (2012).
  3. Id.
  4. U.S. Con­st. Amend. VI.
  5. John­son v. Zerb­st, 304 U.S. 458 (1938); see also McCann v. Richard­son, 397 U.S 759 (1970).
  6. 466 U.S. 668 (1984).
  7. Id. at 687.
  8. Id.
  9. See, e.g., Mis­souri v. Frye, 132 S. Ct. 1399, 1406 (2012); Lafler v. Coop­er, 132 S. Ct. 1376, 1387 (2012).
  10. 559 U.S. 356, 365–66 (2010).
  11. Id. at 369 (empha­sis added).
  12. Id.
  13. Id. at 366.
  14. Id. at 374.
  15. 133 S. Ct. 1103, 1110 (2013) (empha­sis added).
  16. See Frye, 132 S. Ct. at 1406.
  17. Com­pare Maiyo v. Unit­ed States, 576 F. App’x 567, 571 (6th Cir. 2014) (find­ing that inform­ing defen­dant of “risk of depor­ta­tion” was suf­fi­cient), and Chhabra v. Unit­ed States, 720 F.3d 395, 407 (2d Cir. 2013) (find­ing that even par­tial­ly erro­neous advice was not out­side the bounds of pro­fes­sion­al norms), and Abra­ham v. Unit­ed States, 699 F.3d 1050, 1053 (8th Cir. 2012) (per curi­am) (hold­ing that inform­ing defen­dant of the “like­li­hood” of depor­ta­tion was suf­fi­cient), with Unit­ed States v. Fazio, 795 F.3d 421, 427 (3d Cir. 2015) (“Yet plea coun­sel did not inform [the defen­dant] that the plea made him sub­ject to auto­mat­ic depor­ta­tion, as is required under Padil­la”), and Unit­ed States v. Urias-Mar­ru­fo, 744 F.3d 361, 368 (5th Cir. 2014) (“[Defen­dant] cor­rect­ly argues that under Padil­la, she was required to be advised of the cer­tain depor­ta­tion con­se­quences of her plea.”), and Unit­ed States v. Ruiz, 548 F. App’x 410, 412 (9th Cir. 2013) (“[O]ur inter­pre­ta­tion of Padil­la required that Ruiz be informed not that she might face depor­ta­tion, but instead that her depor­ta­tion was a vir­tu­al cer­tain­ty.”). It is also impor­tant to note that with­in the Ninth Cir­cuit, some Dis­trict Courts have begun to ques­tion the hold­ing of Ruiz, and find that its inter­pre­ta­tion of Padil­la relies only on obiter dic­ta. See Unit­ed States v. Cazarez-San­tos, 66 F. Supp. 3d 1301, 1308 (S.D. Cal. 2014) (not­ing that while reluc­tant to char­ac­ter­ize the “vir­tu­al­ly cer­tain” lan­guage of the Ninth Cir­cuit as only dic­ta, such a char­ac­ter­i­za­tion was the “cor­rect way to read the case.”).
  18. Strick­land, 466 U.S. at 688.
  19. Id. at 689.
  20. Padil­la, 559 U.S. at 359.
  21. 8 U.S.C. § 1101(a)(43)(B) (pro­vid­ing that “The term ‘aggra­vat­ed felony’ means illic­it traf­fick­ing in a con­trolled sub­stance, includ­ing a drug traf­fick­ing crime.”); Id. at § 1227(a)(2)(B)(i) (“Any alien who . . . has been con­vict­ed of a vio­la­tion . . . relat­ing to a con­trolled sub­stance . . . is deportable.”).
  22. Padil­la, 559 U.S. at 359.
  23. Id. at 357.
  24. 637 F.3d 980, 982 (9th Cir. 2011) (“Indeed, a con­vic­tion . . . would have con­sti­tut­ed an aggra­vat­ed felony, ren­der­ing [Bonilla’s] depor­ta­tion pre­sump­tive­ly manda­to­ry . . .”).
  25. 797 F.3d 781, 786–87 (9th Cir. 2015).
  26. See, e.g., Urias-Mar­ru­fo, 744 F.3d at 368; Fazio, 795 F.3d at 427. (“Yet plea coun­sel did not inform Fazio that the plea made him sub­ject to auto­mat­ic depor­ta­tion, as is required under Padil­la . . .”).
  27. 8 U.S.C. § 1227(a)(2)(B)(i) (Pro­vid­ing that “Any alien who . . . has been con­vict­ed of a vio­la­tion . . . relat­ing to a con­trolled sub­stance . . . is deportable.”). See, e.g., Maiyo, 576 F. App’x at 571 (find­ing that inform­ing defen­dant of “risk of depor­ta­tion” was suf­fi­cient); Chhabra, 720 F.3d 395 at 407 (find­ing that even par­tial­ly erro­neous advice was not out­side the bounds of pro­fes­sion­al norms); Abra­ham, 699 F.3d at 1053 (per curi­am) (hold­ing that inform­ing defen­dant of the “like­li­hood” of depor­ta­tion was suf­fi­cient).
  28. See, e.g., Fazio, 795 F.3d at 427 (“Yet plea coun­sel did not inform [the defen­dant] that the plea made him sub­ject to auto­mat­ic depor­ta­tion.”). 
  29. See Padil­la, 559 U.S. at 358 (find­ing that Padilla’s attorney’s advice was con­sti­tu­tion­al­ly defi­cient because he informed his client that there were no immi­gra­tion con­se­quences what­so­ev­er, an affir­ma­tive mis­rep­re­sen­ta­tion of the true con­se­quences of the guilty plea.)
  30. Id. at 375. (“I do not agree . . . that the attor­ney must attempt to explain what [immi­gra­tion] con­se­quences may be.”) (Ali­to, J., con­cur­ring).
  31. 372 U.S. 335 (1963).
  32. See Strick­land, 466 U.S. at 689 (“It is all tempt­ing for a defen­dant to sec­ond-guess counsel’s assis­tance after con­vic­tion or adverse sen­tence . . .”)
  33. 556 U.S. 111, 124 (2009).
  34. Id.
  35. See Hugh­es v. Kansas Att’y Gen., 567 F. App’x 570 (10th Cir. 2014); Thur­mond v. Carl­ton, 489 F. App’x 834 (6th Cir. 2012).
  36. Strick­land, 466 U.S. at 689.