Padilla v. Kentucky,
559 U.S. 356 (2010)

Annotate this Case




certiorari to the supreme court of kentucky

No. 08–651. Argued October 13, 2009   —Decided March 31, 2010

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.

   (a) Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6.

   (b) Strickland v. Washington, 466 U. S. 668, applies to Padilla’s claim. Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about deportation concerned only collateral matters. However, this Court has never distinguished between direct and collateral consequences in defining the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. The question whether that distinction is appropriate need not be considered in this case because of the unique nature of deportation. Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Pp. 7–9.

   (c) To satisfy Strickland’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id., at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the … right to remain in the United States’ ” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr, 533 U. S. 289, 323. Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance. Pp. 9–12.

   (d) The Solicitor General’s proposed rule—that Strickland should be applied to Padilla’s claim only to the extent that he has alleged affirmative misadvice—is unpersuasive. And though this Court must be careful about recognizing new grounds for attacking the validity of guilty pleas, the 25 years since Strickland was first applied to ineffective-assistance claims at the plea stage have shown that pleas are less frequently the subject of collateral challenges than convictions after a trial. Also, informed consideration of possible deportation can benefit both the State and noncitizen defendants, who may be able to reach agreements that better satisfy the interests of both parties. This decision will not open the floodgates to challenges of convictions obtained through plea bargains. Cf. Hill v. Lockhart, 474 U. S. 52, 58. Pp. 12–16.

253 S. W. 3d 482, reversed and remanded.

   Stevens, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Roberts, C. J., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.

Primary Holding

Defense attorneys must communicate with non-citizen clients about immigration consequences of a conviction, including advising them when deportation may result and when it will result.


A lawful permanent resident in the U.S. and a Vietnam War veteran, Jose Padilla was arrested in Kentucky in 2001 for transporting marijuana. He pleaded guilty to the charge after his lawyer advised him that the conviction would not affect his immigration status. To the contrary, the conviction had a high probability of resulting in his removal from the U.S. Padilla brought a motion for post-conviction relief based on ineffective assistance of counsel under the Sixth Amendment and Strickland v. Washington.

This case initially was framed in terms of the collateral consequence rule. Defense attorneys were not bound to inform their clients of the collateral consequences of their plea bargains but only of direct consequences, like the likely sentence that they might face depending on whether they took a bargain or not. Collateral consequences typically had included matters like the loss of voting rights, government benefits, or membership in professional organizations. Deportation technically has been considered a civil matter rather than a criminal punishment, which seemed to place it in the territory of collateral rather than direct consequences. This would have meant that Padilla's attorney was not compelled to warn him about it. However, Padilla's Sixth Amendment claim initially succeeded on appeal before the state requested discretionary review from the Kentucky Supreme Court.

Procedural History

Kentucky Supreme Court - 253 S.W.3d 482 (Ky. 2008).

Reversed. By applying the collateral consequences doctrine, even deliberately giving the defendant incorrect advice about the immigration consequences of the plea bargain would not have violated his Sixth Amendment rights under Strickland v. Washington.



  • John Paul Stevens (Author)
  • Anthony M. Kennedy
  • Ruth Bader Ginsburg
  • Stephen G. Breyer
  • Sonia Sotomayor

The majority stated that attorneys must advise defendants of deportation consequences even when the law is ambiguous, and they must specifically inform defendants that deportation is certain to result from a conviction when the law is unambiguous. To avoid giving incorrect advice, they cannot simply provide no advice on the topic but must address it in some way. Stevens found that the collateral consequences doctrine should not apply and suggested that deportation was essentially a criminal penalty despite its classification as a civil measure.

Exploring current legal norms at length, the majority felt that it was accepted in the profession that attorneys must investigate the possibility that a non-citizen client will be deported and inform that client of related risks. According to Stevens, some non-citizens may prefer to incur a longer sentence rather than be deported, so this factor can shape a client's entire set of objectives. While recognizing that immigration law is complex and technical, he felt that lawyers were obligated to at least provide some minimal indication to a client that immigration issues might arise in a certain situation.


  • Samuel A. Alito, Jr. (Author)
  • John G. Roberts, Jr.

Alito felt that the lawyer's misinformation in this case violated the Sixth Amendment, since attorneys should be expected not to present their conjectures as facts. He would have imposed less stringent requirements on lawyers, however, in determining whether an immigration law was ambiguous. Alito argued that it is often difficult to determine what the immigration consequences of a conviction may be when someone who is not an expert in the field reads a statute or regulation. He therefore felt that creating a sharp distinction between when the law is clear and when it is ambiguous was not practically useful.


  • Antonin Scalia (Author)
  • Clarence Thomas

Relying on the text of the Sixth Amendment and Court precedents, Scalia felt that the majority offered too broad an interpretation of what counsel must do to provide effective assistance. He argued that requiring lawyers to inform clients of collateral consequences, a term that he found still useful, would force them to conduct a vast amount of research on areas that might affect their clients and about which they could not know enough to offer meaningful advice.

Case Commentary

As a result of this decision, immigration consequences now are often included in plea bargains. It is unclear whether it completely repudiates the collateral consequences doctrine, but it is possible that its reasoning could be extended to other areas, such as the loss of the right to vote or the right to bear arms, as well as eligibility for public benefits.

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