Gentlemen:
These cases have been a problem since before the Supremes decided Padilla. Padilla simply made it worse.
What Padilla now says is that a criminal defense attorney at the State level has a duty to know enough about Federal immigration law to tell his criminal client that:
A: pleading guilty to a certain charge will definitely, positively, for-sure, make you deportable, or
B: there is enough ambiguity between the federal law and the state law under which you are charged that pleading guilty might make you deportable.
And he has to give that advice. He can't just not say anything. And he can't just say "I think you should consult with an immigration attorney before you plead. Just let me know what he says."
Now a defendant can come back to court and say "my public defender didn't tell me (in 2002) that even though I was in the country illegally, conviction on this charge would make it impossible for me to apply for a specific federal program (then available) that could lead to permanent residence in the future. And now I am forever barred from becoming a legal resident."
(Just for the moment, we'll ignore the "prejudice" prong of Strickland. That's TMI.)
Assuming the conviction is overturned, the State then has to choose between taking him to trial and convicting him that way, or dismissing the case.
Padilla even applies in cases where a non-citizen turns down a plea offer that would have sheltered him from deportation, goes to trial, loses and is convicted of a charge that does expose him.
Stupid Pills doesn't even begin to describe it.
- Tom
