by Kartik Sameer Madiraju*

Does an attorney satisfy a resident alien client’s Sixth Amendment right to effective counsel by informing the client of the mere risks of deportation associated with a guilty plea, or must she predict the likelihood of deportation with even greater specificity? Kartik Madiraju (’17) examines this question, presented at the 2016 Evans Constitutional Law Moot, held at the University of Wisconsin. Though the Supreme Court has held that attorneys must inform their clients whether a guilty plea carries a risk of deportation, several of the Circuit Courts of Appeals disagree on how specifically an attorney must characterize the likelihood of that risk. This Contribution argues that the majority interpretation, requiring only that attorneys advise their clients of the mere existence of such a risk, is more consistent with the letter and spirit of Supreme Court precedent, and better reflects the discretionary nature of an Attorney General’s decision to order deportation.

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.3 And 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.4 Assistance of counsel means effective assistance of counsel, as the Court clarified in Johnson v. Zerbst, and later again in McCann v. Richardson.5 In 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.”7 Second, 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.10 The 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.”19 The 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.

* 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.