Padilla v. Kentucky

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PADILLA v. KENTUCKY
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 conse
quence before he entered the plea, but also told him not to worry
about deportation since he had lived in this country so long. He al
leges that he would have gone to trial had he not received this incor
rect advice. The Kentucky Supreme Court denied Padilla postconvic
tion relief on the ground that the Sixth Amendment’s effective
assistance-of-counsel guarantee does not protect defendants from er
roneous deportation advice because deportation is merely a “collat
eral” 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 de
pends 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 de
fendants who plead guilty to specified crimes. Pp. 2–6.
2 PADILLA v. KENTUCKY
Syllabus
(b) Strickland v. Washington, 466 U. S. 668, applies to Padilla’s
claim. Before deciding whether to plead guilty, a defendant is enti
tled to “the effective assistance of competent counsel.” McMann v.
Richardson, 397 U. S. 759, 771. The Supreme Court of Kentucky re
jected Padilla’s ineffectiveness claim on the ground that the advice he
sought about deportation concerned only collateral matters. How
ever, this Court has never distinguished between direct and collat
eral consequences in defining the scope of constitutionally “reason
able 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 deporta
tion. Although removal proceedings are civil, deportation is inti
mately related to the criminal process, which makes it uniquely diffi
cult 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 deporta
tion is not categorically removed from the ambit of the Sixth Amend
ment right to counsel. Pp. 7–9.
(c) To satisfy Strickland’s two-prong inquiry, counsel’s representa
tion 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 expecta
tions. Id., at 688. The weight of prevailing professional norms sup
ports the view that counsel must advise her client regarding the de
portation 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 deporta
tion. 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 deporta
tion was presumptively mandatory, and his counsel’s advice was in
correct. 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 al
leged 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
Cite as: 559 U. S. ____ (2010) 3
Syllabus
be applied to Padilla’s claim only to the extent that he has alleged af
firmative 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 inef
fective-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 opin
ion concurring in the judgment, in which ROBERTS, C. J., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined.
Cite as: 559 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–651
_________________
JOSE PADILLA, PETITIONER v. KENTUCKY
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
KENTUCKY
[March 31, 2010]
JUSTICE STEVENS delivered the opinion of the Court.
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. He now faces deportation after pleading guilty to the
transportation of a large amount of marijuana in his
tractor-trailer in the Commonwealth of Kentucky.1
In this postconviction proceeding, Padilla claims that his
counsel not only failed to advise him of this consequence
prior to his entering the plea, but also told him that he
“ ‘did not have to worry about immigration status since he
had been in the country so long.’ ” 253 S. W. 3d 482, 483
(Ky. 2008). Padilla relied on his counsel’s erroneous ad
vice when he pleaded guilty to the drug charges that made
his deportation virtually mandatory. He alleges that he
would have insisted on going to trial if he had not received
incorrect advice from his attorney.
Assuming the truth of his allegations, the Supreme
——————
1 Padilla’s crime, like virtually every drug offense except for only the
most insignificant marijuana offenses, is a deportable offense under 8
U. S. C. §1227(a)(2)(B)(i).
2 PADILLA v. KENTUCKY
Opinion of the Court
Court of Kentucky denied Padilla postconviction relief
without the benefit of an evidentiary hearing. The court
held that the Sixth Amendment’s guarantee of effective
assistance of counsel does not protect a criminal defendant
from erroneous advice about deportation because it is
merely a “collateral” consequence of his conviction. Id., at
485. In its view, neither counsel’s failure to advise peti
tioner about the possibility of removal, nor counsel’s incor
rect advice, could provide a basis for relief.
We granted certiorari, 555 U. S. ___ (2009), to decide
whether, as a matter of federal law, Padilla’s counsel had
an obligation to advise him that the offense to which he
was pleading guilty would result in his removal from this
country. We agree with Padilla that constitutionally
competent counsel would have advised him that his con
viction for drug distribution made him subject to auto
matic deportation. Whether he is entitled to relief de
pends on whether he has been prejudiced, a matter that
we do not address.
I
The landscape of federal immigration law has changed
dramatically over the last 90 years. While once there was
only a narrow class of deportable offenses and judges
wielded broad discretionary authority to prevent deporta
tion, immigration reforms over time have expanded the
class of deportable offenses and limited the authority of
judges to alleviate the harsh consequences of deportation.
The “drastic measure” of deportation or removal, Fong
Haw Tan v. Phelan, 333 U. S. 6, 10 (1948), is now virtually
inevitable for a vast number of noncitizens convicted of
crimes.
The Nation’s first 100 years was “a period of unimpeded
immigration.” C. Gordon & H. Rosenfield, Immigration
Law and Procedure §1.(2)(a), p. 5 (1959). An early effort to
empower the President to order the deportation of those
Cite as: 559 U. S. ____ (2010) 3
Opinion of the Court
immigrants he “judge[d] dangerous to the peace and safety
of the United States,” Act of June 25, 1798, ch. 58, 1 Stat.
571, was short lived and unpopular. Gordon §1.2, at 5. It
was not until 1875 that Congress first passed a statute
barring convicts and prostitutes from entering the coun
try, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477. Gordon
§1.2b, at 6. In 1891, Congress added to the list of exclud
able persons those “who have been convicted of a felony or
other infamous crime or misdemeanor involving moral
turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084.2
The Immigration and Nationality Act of 1917 (1917 Act)
brought “radical changes” to our law. S. Rep. No. 1515,
81st Cong., 2d Sess., pp. 54–55 (1950). For the first time
in our history, Congress made classes of noncitizens de
portable based on conduct committed on American soil.
Id., at 55. Section 19 of the 1917 Act authorized the de
portation of “any alien who is hereafter sentenced to im
prisonment for a term of one year or more because of
conviction in this country of a crime involving moral turpi
tude, committed within five years after the entry of the
alien to the United States . . . .” 39 Stat. 889. And §19
also rendered deportable noncitizen recidivists who com
mit two or more crimes of moral turpitude at any time
after entry. Ibid. Congress did not, however, define the
term “moral turpitude.”
While the 1917 Act was “radical” because it authorized
deportation as a consequence of certain convictions, the
Act also included a critically important procedural protec
tion to minimize the risk of unjust deportation: At the
time of sentencing or within 30 days thereafter, the sen
tencing judge in both state and federal prosecutions had
the power to make a recommendation “that such alien
——————
2 In 1907, Congress expanded the class of excluded persons to include
individuals who “admit” to having committed a crime of moral turpi
tude. Act of Feb. 20, 1907, ch. 1134, 34 Stat. 899.
4 PADILLA v. KENTUCKY
Opinion of the Court
shall not be deported.” Id., at 890.3 This procedure,
known as a judicial recommendation against deportation,
or JRAD, had the effect of binding the Executive to pre
vent deportation; the statute was “consistently . . . inter
preted as giving the sentencing judge conclusive authority
to decide whether a particular conviction should be disre
garded as a basis for deportation,” Janvier v. United
States, 793 F. 2d 449, 452 (CA2 1986). Thus, from 1917
forward, there was no such creature as an automatically
deportable offense. Even as the class of deportable of
fenses expanded, judges retained discretion to ameliorate
unjust results on a case-by-case basis.
Although narcotics offenses—such as the offense at
issue in this case—provided a distinct basis for deporta
tion as early as 1922,4 the JRAD procedure was generally
——————
3 Asenacted, the statute provided:
“That the provision of this section respecting the deportation of aliens
convicted of a crime involving moral turpitude shall not apply to one
who has been pardoned, nor shall such deportation be made or directed
if the court, or judge thereof, sentencing such alien for such crime shall,
at the time of imposing judgment or passing sentence or within thirty
days thereafter, . . . make a recommendation to the Secretary of Labor
that such alien shall not be deported in pursuance of this Act.” 1917
Act, 39 Stat. 889–890.
This provision was codified in 8 U. S. C. §1251(b) (1994 ed.) (transferred
to §1227 (2006 ed. )). The judge’s nondeportation recommendation was
binding on the Secretary of Labor and, later, the Attorney General after
control of immigration removal matters was transferred from the
former to the latter. See Janvier v. United States, 793 F. 2d 449, 452
(CA2 1986).
4 Congress first identified narcotics offenses as a special category of
crimes triggering deportation in the 1922 Narcotic Drug Act. Act of
May 26, 1922, ch. 202, 42 Stat. 596. After the 1922 Act took effect,
there was some initial confusion over whether a narcotics offense also
had to be a crime of moral turpitude for an individual to be deportable.
See Weedin v. Moy Fat, 8 F. 2d 488, 489 (CA9 1925) (holding that an
individual who committed narcotics offense was not deportable because
offense did not involve moral turpitude). However, lower courts even
tually agreed that the narcotics offense provision was “special,” Chung
Cite as: 559 U. S. ____ (2010) 5
Opinion of the Court
available to avoid deportation in narcotics convictions.
See United States v. O’Rourke, 213 F. 2d 759, 762 (CA8
1954). Except for “technical, inadvertent and insignificant
violations of the laws relating to narcotics,” ibid., it ap
pears that courts treated narcotics offenses as crimes
involving moral turpitude for purposes of the 1917 Act’s
broad JRAD provision. See ibid. (recognizing that until
1952 a JRAD in a narcotics case “was effective to prevent
deportation” (citing Dang Nam v. Bryan, 74 F. 2d 379,
380–381 (CA9 1934))).
In light of both the steady expansion of deportable
offenses and the significant ameliorative effect of a JRAD,
it is unsurprising that, in the wake of Strickland v. Wash
ington, 466 U. S. 668 (1984), the Second Circuit held that
the Sixth Amendment right to effective assistance of
counsel applies to a JRAD request or lack thereof, see
Janvier, 793 F. 2d 449. See also United States v. Castro,
26 F. 3d 557 (CA5 1994). In its view, seeking a JRAD was
“part of the sentencing” process, Janvier, 793 F. 2d, at 452,
even if deportation itself is a civil action. Under the Sec
ond Circuit’s reasoning, the impact of a conviction on a
noncitizen’s ability to remain in the country was a central
issue to be resolved during the sentencing process—not
merely a collateral matter outside the scope of counsel’s
duty to provide effective representation.
However, the JRAD procedure is no longer part of our
law. Congress first circumscribed the JRAD provision in
the 1952 Immigration and Nationality Act (INA),5 and in
——————
Que Fong v. Nagle, 15 F. 2d 789, 790 (CA9 1926); thus, a narcotics
offense did not need also to be a crime of moral turpitude (or to satisfy
other requirements of the 1917 Act) to trigger deportation. See United
States ex rel. Grimaldi v. Ebey, 12 F. 2d 922, 923 (CA7 1926); Todaro v.
Munster, 62 F. 2d 963, 964 (CA10 1933).
5 The Act separately codified the moral turpitude offense provision
and the narcotics offense provision within 8 U. S. C. §1251(a) (1994 ed.)
under subsections (a)(4) and (a)(11), respectively. See 66 Stat. 201, 204,
6 PADILLA v. KENTUCKY
Opinion of the Court
1990 Congress entirely eliminated it, 104 Stat. 5050. In
1996, Congress also eliminated the Attorney General’s
authority to grant discretionary relief from deportation,
110 Stat. 3009–596, an authority that had been exercised
to prevent the deportation of over 10,000 noncitizens
during the 5-year period prior to 1996, INS v. St. Cyr, 533
U. S. 289, 296 (2001). Under contemporary law, if a non
citizen has committed a removable offense after the 1996
effective date of these amendments, his removal is practi
cally inevitable but for the possible exercise of limited
remnants of equitable discretion vested in the Attorney
General to cancel removal for noncitizens convicted of
particular classes of offenses.6 See 8 U. S. C. §1229b.
Subject to limited exceptions, this discretionary relief is
not available for an offense related to trafficking in a
controlled substance. See §1101(a)(43)(B); §1228.
These changes to our immigration law have dramati
cally raised the stakes of a noncitizen’s criminal convic
tion. The importance of accurate legal advice for nonciti
zens accused of crimes has never been more important.
These changes confirm our view that, as a matter of fed
eral law, deportation is an integral part—indeed, some
times the most important part 7—of the penalty that may
be imposed on noncitizen defendants who plead guilty to
specified crimes.
——————
206. The JRAD procedure, codified in 8 U. S. C. §1251(b) (1994 ed.),
applied only to the “provisions of subsection (a)(4),” the crimes-of-moral
turpitude provision. 66 Stat. 208; see United States v. O’Rourke, 213
F. 2d 759, 762 (CA8 1954) (recognizing that, under the 1952 Act,
narcotics offenses were no longer eligible for JRADs).
6 The changes to our immigration law have also involved a change in
nomenclature; the statutory text now uses the term “removal” rather
than “deportation.” See Calcano-Martinez v. INS, 533 U. S. 348, 350,
n. 1 (2001).
7 See Brief for Asian American Justice Center et al. as Amici Curiae
12–27 (providing real-world examples).
Cite as: 559 U. S. ____ (2010)
7
Opinion of the Court
II
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 (1970); Strick
land, 466 U. S., at 686. The Supreme Court of Kentucky
rejected Padilla’s ineffectiveness claim on the ground that
the advice he sought about the risk of deportation con
cerned only collateral matters, i.e., those matters not
within the sentencing authority of the state trial court.8
253 S. W. 3d, at 483–484 (citing Commonwealth v. Fuar
tado, 170 S. W. 3d 384 (2005)). In its view, “collateral
consequences are outside the scope of representation
required by the Sixth Amendment,” and, therefore, the
“failure of defense counsel to advise the defendant of
possible deportation consequences is not cognizable as a
claim for ineffective assistance of counsel.” 253 S. W. 3d,
at 483. The Kentucky high court is far from alone in this
view.9
——————
8 There is some disagreement among the courts over how to distin
guish between direct and collateral consequences. See Roberts, Igno
rance is Effectively Bliss: Collateral Consequences, Silence, and Misin
formation in the Guilty-Plea Process, 95 Iowa L. Rev. 119, 124, n. 15
(2009). The disagreement over how to apply the direct/collateral
distinction has no bearing on the disposition of this case because, as
even JUSTICE ALITO agrees, counsel must, at the very least, advise a
noncitizen “defendant that a criminal conviction may have adverse
immigration consequences,” post, at 1 (opinion concurring in judgment).
See also post, at 14 (“I do not mean to suggest that the Sixth Amend
ment does no more than require defense counsel to avoid misinforma
tion”). In his concurring opinion, JUSTICE ALITO has thus departed from
the strict rule applied by the Supreme Court of Kentucky and in the
two federal cases that he cites, post, at 2.
9 See, e.g., United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United
States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v.
Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States,
548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10
2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya
v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183
8 PADILLA v. KENTUCKY
Opinion of the Court
We, however, have never applied a distinction between
direct and collateral consequences to define the scope of
constitutionally “reasonable professional assistance”
required under Strickland, 466 U. S., at 689. Whether
that distinction is appropriate is a question we need not
consider in this case because of the unique nature of
deportation.
We have long recognized that deportation is a particu
larly severe “penalty,” Fong Yue Ting v. United States, 149
U. S. 698, 740 (1893); but it is not, in a strict sense, a
criminal sanction. Although removal proceedings are civil
in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038
(1984), deportation is nevertheless intimately related to
the criminal process. Our law has enmeshed criminal
convictions and the penalty of deportation for nearly a
century, see Part I, supra, at 2–7. And, importantly,
recent changes in our immigration law have made removal
nearly an automatic result for a broad class of noncitizen
offenders. Thus, we find it “most difficult” to divorce the
penalty from the conviction in the deportation context.
United States v. Russell, 686 F. 2d 35, 38 (CADC 1982).
Moreover, we are quite confident that noncitizen defen
dants facing a risk of deportation for a particular offense
find it even more difficult. See St. Cyr, 533 U. S., at 322(“There can be little doubt that, as a general matter, alien
defendants considering whether to enter into a plea
agreement are acutely aware of the immigration conse
quences of their convictions”).
Deportation as a consequence of a criminal conviction is,
because of its close connection to the criminal process,
uniquely difficult to classify as either a direct or a collat
eral consequence. The collateral versus direct distinction
——————
Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000–2739
(La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552,
555 A. 2d 92 (1989).
Cite as: 559 U. S. ____ (2010) 9
Opinion of the Court
is thus ill-suited to evaluating a Strickland claim concern
ing the specific risk of deportation. We conclude that
advice regarding deportation is not categorically removed
from the ambit of the Sixth Amendment right to counsel.
Strickland applies to Padilla’s claim.
III
Under Strickland, we first determine whether counsel’s
representation “fell below an objective standard of reason
ableness.” 466 U. S., at 688. Then we ask whether “there
is a reasonable probability that, but for counsel’s unpro
fessional errors, the result of the proceeding would have
been different.” Id., at 694. The first prong—constitu
tional deficiency—is necessarily linked to the practice and
expectations of the legal community: “The proper measure
of attorney performance remains simply reasonableness
under prevailing professional norms.” Id., at 688. We long
have recognized that “[p]revailing norms of practice as
reflected in American Bar Association standards and the
like . . . are guides to determining what is reasonable . . . .”
Ibid.; Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per
curiam) (slip op., at 3); Florida v. Nixon, 543 U. S. 175,
191, and n. 6 (2004); Wiggins v. Smith, 539 U. S. 510, 524
(2003); Williams v. Taylor, 529 U. S. 362, 396 (2000).
Although they are “only guides,” Strickland, 466 U. S., at
688, and not “inexorable commands,” Bobby, 558 U. S., at
___ (slip op., at 5), these standards may be valuable meas
ures of the prevailing professional norms of effective rep
resentation, especially as these standards have been
adapted to deal with the intersection of modern criminal
prosecutions and immigration law.
The weight of prevailing professional norms supports
the view that counsel must advise her client regarding the
risk of deportation. National Legal Aid and Defender
Assn., Performance Guidelines for Criminal Representa
tion §6.2 (1995); G. Herman, Plea Bargaining §3.03,
10 PADILLA v. KENTUCKY
Opinion of the Court
pp. 20–21 (1997); Chin & Holmes, Effective Assistance of
Counsel and the Consequences of Guilty Pleas, 87 Cornell
L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentenc
ing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice,
Office of Justice Programs, 2 Compendium of Standards
for Indigent Defense Systems, Standards for Attorney
Performance, pp. D10, H8–H9, J8 (2000) (providing survey
of guidelines across multiple jurisdictions); ABA Stan
dards for Criminal Justice, Prosecution Function and
Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA
Standards for Criminal Justice, Pleas of Guilty 14–3.2(f),
p. 116 (3d ed. 1999). “[A]uthorities of every stripe—
including the American Bar Association, criminal defense
and public defender organizations, authoritative treatises,
and state and city bar publications—universally require
defense attorneys to advise as to the risk of deportation
consequences for non-citizen clients . . . .” Brief for Legal
Ethics, Criminal Procedure, and Criminal Law Professors
as Amici Curiae 12–14 (footnotes omitted) (citing, inter
alia, National Legal Aid and Defender Assn., Guidelines,
supra, §§6.2–6.4 (1997); S. Bratton & E. Kelley, Practice
Points: Representing a Noncitizen in a Criminal Case, 31
The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal
Defense of Immigrants §1.3 (3d ed. 2003); 2 Criminal
Practice Manual §§45:3, 45:15 (2009)).
We too have previously recognized that “ ‘[p]reserving
the client’s right to remain in the United States may be
more important to the client than any potential jail sen
tence.’ ” St. Cyr, 533 U. S., at 323 (quoting 3 Criminal
Defense Techniques §§60A.01, 60A.02[2] (1999)). Like
wise, we have recognized that “preserving the possibility
of” discretionary relief from deportation under §212(c) of
the 1952 INA, 66 Stat. 187, repealed by Congress in 1996,
“would have been one of the principal benefits sought by
defendants deciding whether to accept a plea offer or
instead to proceed to trial.” St. Cyr, 533 U. S., at 323. We
Cite as: 559 U. S. ____ (2010) 11
Opinion of the Court
expected that counsel who were unaware of the discre
tionary relief measures would “follo[w] the advice of nu
merous practice guides” to advise themselves of the impor
tance of this particular form of discretionary relief. Ibid.,
n. 50.
In the instant case, the terms of the relevant immigra
tion statute are succinct, clear, and explicit in defining the
removal consequence for Padilla’s conviction. See 8
U. S. C. §1227(a)(2)(B)(i) (“Any alien who at any time after
admission has been convicted of a violation of (or a con
spiracy or attempt to violate) any law or regulation of a
State, the United States or a foreign country relating to a
controlled substance . . . , other than a single offense in
volving possession for one’s own use of 30 grams or less of
marijuana, is deportable”). Padilla’s counsel could have
easily determined that his plea would make him eligible
for deportation simply from reading the text of the statute,
which addresses not some broad classification of crimes
but specifically commands removal for all controlled sub
stances convictions except for the most trivial of mari
juana possession offenses. Instead, Padilla’s counsel
provided him false assurance that his conviction would not
result in his removal from this country. 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 man
datory, and his counsel’s advice was incorrect.
Immigration law can be complex, and it is a legal spe
cialty of its own. Some members of the bar who represent
clients facing criminal charges, in either state or federal
court or both, may not be well versed in it. There will,
therefore, undoubtedly be numerous situations in which
the deportation consequences of a particular plea are
unclear or uncertain. The duty of the private practitioner
in such cases is more limited. When the law is not suc
cinct and straightforward (as it is in many of the scenarios
12 PADILLA v. KENTUCKY
Opinion of the Court
posited by JUSTICE ALITO), a criminal defense attorney
need do no more than advise a noncitizen client that pend
ing criminal charges may carry a risk of adverse immigra
tion consequences.10 But when the deportation conse
quence is truly clear, as it was in this case, the duty to
give correct advice is equally clear.
Accepting his allegations as true, Padilla has suffi
ciently alleged constitutional deficiency to satisfy the first
prong of Strickland. Whether Padilla is entitled to relief
on his claim will depend on whether he can satisfy Strick
land’s second prong, prejudice, a matter we leave to the
Kentucky courts to consider in the first instance.
IV
The Solicitor General has urged us to conclude that
Strickland applies to Padilla’s claim only to the extent
that he has alleged affirmative misadvice. In the United
States’ view, “counsel is not constitutionally required to
provide advice on matters that will not be decided in the
criminal case . . . ,” though counsel is required to provide
accurate advice if she chooses to discusses these matters.
Brief for United States as Amicus Curiae 10.
Respondent and Padilla both find the Solicitor General’s
proposed rule unpersuasive, although it has support
among the lower courts. See, e.g., United States v. Couto,
311 F. 3d 179, 188 (CA2 2002); United States v. Kwan, 407
F. 3d 1005 (CA9 2005); Sparks v. Sowders, 852 F. 2d 882(CA6 1988); United States v. Russell, 686 F. 2d 35 (CADC
1982); State v. Rojas-Martinez, 2005 UT 86, 125 P. 3d 930,
935; In re Resendiz, 25 Cal. 4th 230, 19 P. 3d 1171 (2001).
Kentucky describes these decisions isolating an affirma
tive misadvice claim as “result-driven, incestuous . . .
——————
10 AsJUSTICE ALITO explains at length, deportation consequences are
often unclear. Lack of clarity in the law, however, does not obviate the
need for counsel to say something about the possibility of deportation,
even though it will affect the scope and nature of counsel’s advice.
Cite as: 559 U. S. ____ (2010) 13
Opinion of the Court
[,and] completely lacking in legal or rational bases.” Brief
for Respondent 31. We do not share that view, but we
agree that there is no relevant difference “between an act
of commission and an act of omission” in this context. Id.,
at 30; Strickland, 466 U. S., at 690 (“The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance”); see also State v.
Paredez, 2004–NMSC–036, 136 N. M. 533, 538–539.
A holding limited to affirmative misadvice would invite
two absurd results. First, it would give counsel an incen
tive to remain silent on matters of great importance, even
when answers are readily available. Silence under these
circumstances would be fundamentally at odds with the
critical obligation of counsel to advise the client of “the
advantages and disadvantages of a plea agreement.”
Libretti v. United States, 516 U. S. 29, 50–51 (1995).
When attorneys know that their clients face possible exile
from this country and separation from their families, they
should not be encouraged to say nothing at all.11 Second,
it would deny a class of clients least able to represent
themselves the most rudimentary advice on deportation
even when it is readily available. It is quintessentially the
duty of counsel to provide her client with available advice
about an issue like deportation and the failure to do so
“clearly satisfies the first prong of the Strickland analy
sis.” Hill v. Lockhart, 474 U. S. 52, 62 (1985) (White, J.,
——————
11 As the Commonwealth conceded at oral argument, were a defen
dant’s lawyer to know that a particular offense would result in the
client’s deportation and that, upon deportation, the client and his
family might well be killed due to circumstances in the client’s home
country, any decent attorney would inform the client of the conse
quences of his plea. Tr. of Oral Arg. 37–38. We think the same result
should follow when the stakes are not life and death but merely “ban
ishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390–391
(1947).
14 PADILLA v. KENTUCKY
Opinion of the Court
concurring in judgment).
We have given serious consideration to the concerns
that the Solicitor General, respondent, and amici have
stressed regarding the importance of protecting the final
ity of convictions obtained through guilty pleas. We con
fronted a similar “floodgates” concern in Hill, see id., at
58, but nevertheless applied Strickland to a claim that
counsel had failed to advise the client regarding his parole
eligibility before he pleaded guilty.12
A flood did not follow in that decision’s wake. Sur
mounting Strickland’s high bar is never an easy task.
See, e.g., 466 U. S., at 689 (“Judicial scrutiny of counsel’s
performance must be highly deferential”); id., at 693(observing that “[a]ttorney errors . . . are as likely to be
utterly harmless in a particular case as they are to be
prejudicial”). Moreover, to obtain relief on this type of
claim, a petitioner must convince the court that a decision
to reject the plea bargain would have been rational under
the circumstances. See Roe v. Flores-Ortega, 528 U. S.
470, 480, 486 (2000). There is no reason to doubt that
lower courts—now quite experienced with applying Strick
land—can effectively and efficiently use its framework to
——————
12 However, we concluded that, even though Strickland applied to
petitioner’s claim, he had not sufficiently alleged prejudice to satisfy
Strickland’s second prong. Hill, 474 U. S., at 59–60. This disposition
further underscores the fact that it is often quite difficult for petitioners
who have acknowledged their guilt to satisfy Strickland’s prejudice
prong.
JUSTICE ALITO believes that the Court misreads Hill, post, at 10–11.
In Hill, the Court recognized—for the first time—that Strickland
applies to advice respecting a guilty plea. 474 U. S., at 58 (“We hold,
therefore, that the two-part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of counsel”).
It is true that Hill does not control the question before us. But its
import is nevertheless clear. Whether Strickland applies to Padilla’s
claim follows from Hill, regardless of the fact that the Hill Court did
not resolve the particular question respecting misadvice that was
before it.
Cite as: 559 U. S. ____ (2010) 15
Opinion of the Court
separate specious claims from those with substantial
merit.
It seems unlikely that our decision today will have a
significant effect on those convictions already obtained as
the result of plea bargains. For at least the past 15 years,
professional norms have generally imposed an obligation
on counsel to provide advice on the deportation conse
quences of a client’s plea. See, supra, at 11–13. We
should, therefore, presume that counsel satisfied their
obligation to render competent advice at the time their
clients considered pleading guilty. Strickland, 466 U. S.,
at 689.
Likewise, although we must be especially careful about
recognizing new grounds for attacking the validity of
guilty pleas, in the 25 years since we first applied Strick
land to claims of ineffective assistance at the plea stage,
practice has shown that pleas are less frequently the
subject of collateral challenges than convictions obtained
after a trial. Pleas account for nearly 95% of all criminal
convictions.13 But they account for only approximately
30% of the habeas petitions filed.14 The nature of relief
secured by a successful collateral challenge to a guilty
plea—an opportunity to withdraw the plea and proceed to
trial—imposes its own significant limiting principle: Those
who collaterally attack their guilty pleas lose the benefit of
the bargain obtained as a result of the plea. Thus, a dif
ferent calculus informs whether it is wise to challenge a
——————
13 See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics 2003, p. 418 (31st ed. 2005) (Table 5.17)
(only approximately 5%, or 8,612 out of 68,533, of federal criminal
prosecutions go to trial); id., at 450 (Table 5.46) (only approximately 5%
of all state felony criminal prosecutions go to trial).
14 See V. Flango, National Center for State Courts, Habeas Corpus in
State and Federal Courts 36–38 (1994) (demonstrating that 5% of
defendants whose conviction was the result of a trial account for ap
proximately 70% of the habeas petitions filed).
16 PADILLA v. KENTUCKY
Opinion of the Court
guilty plea in a habeas proceeding because, ultimately,
the challenge may result in a less favorable outcome for
the defendant, whereas a collateral challenge to a convic
tion obtained after a jury trial has no similar downside
potential.
Finally, informed consideration of possible deportation
can only benefit both the State and noncitizen defendants
during the plea-bargaining process. By bringing deporta
tion consequences into this process, the defense and prose
cution may well be able to reach agreements that better
satisfy the interests of both parties. As in this case, a
criminal episode may provide the basis for multiple
charges, of which only a subset mandate deportation
following conviction. Counsel who possess the most rudi
mentary understanding of the deportation consequences of
a particular criminal offense may be able to plea bargain
creatively with the prosecutor in order to craft a conviction
and sentence that reduce the likelihood of deportation, as
by avoiding a conviction for an offense that automatically
triggers the removal consequence. At the same time, the
threat of deportation may provide the defendant with a
powerful incentive to plead guilty to an offense that does
not mandate that penalty in exchange for a dismissal of a
charge that does.
In sum, we have long recognized that the negotiation of
a plea bargain is a critical phase of litigation for purposes
of the Sixth Amendment right to effective assistance of
counsel. Hill, 474 U. S., at 57; see also Richardson, 397
U. S., at 770–771. The severity of deportation—“the
equivalent of banishment or exile,” Delgadillo v. Carmi
chael, 332 U. S. 388, 390–391 (1947)—only underscores
how critical it is for counsel to inform her noncitizen client
that he faces a risk of deportation.15
——————
15 To this end, we find it significant that the plea form currently used
in Kentucky courts provides notice of possible immigration conse
Cite as: 559 U. S. ____ (2010) 17
Opinion of the Court
V
It is our responsibility under the Constitution to ensure
that no criminal defendant—whether a citizen or not—is
left to the “mercies of incompetent counsel.” Richardson,
397 U. S., at 771. To satisfy this responsibility, we now
hold that counsel must inform her client whether his plea
carries a risk of deportation. Our longstanding Sixth
Amendment precedents, the seriousness of deportation as
a consequence of a criminal plea, and the concomitant
impact of deportation on families living lawfully in this
country demand no less.
Taking as true the basis for his motion for postconvic
tion relief, we have little difficulty concluding that Padilla
has sufficiently alleged that his counsel was constitution
ally deficient. Whether Padilla is entitled to relief will
depend on whether he can demonstrate prejudice as a
result thereof, a question we do not reach because it was
not passed on below. See Verizon Communications Inc. v.
FCC, 535 U. S. 467, 530 (2002).
——————
quences. Ky. Admin. Office of Courts, Motion to Enter Guilty Plea,
Form AOC–491 (Rev. 2/2003), http://courts.ky.gov/NR/rdonlyres/
55E1F54E-ED5C-4A30-B1D5-4C43C7ADD63C/0/491.pdf (as visited
Mar. 29, 2010, and available in Clerk of Court’s case file). Further,
many States require trial courts to advise defendants of possible
immigration consequences. See, e.g., Alaska Rule Crim. Proc.
11(c)(3)(C) (2009–2010); Cal. Penal Code Ann. §1016.5 (West 2008);
Conn. Gen. Stat. §54–1j (2009); D. C. Code §16–713 (2001); Fla. Rule
Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga. Code Ann. §17–7–93(c) (1997);
Haw. Rev. Stat. Ann. §802E–2 (2007); Iowa Rule Crim. Proc.
2.8(2)(b)(3) (Supp. 2009); Md. Rule 4–242 (Lexis 2009); Mass. Gen.
Laws, ch. 278, §29D (2009); Minn. Rule Crim. Proc. 15.01 (2009); Mont.
Code Ann. §46–12–210 (2009); N. M. Rule Crim. Form 9–406 (2009); N.
Y. Crim. Proc. Law Ann. §220.50(7) (West Supp. 2009); N. C. Gen. Stat.
Ann. §15A–1022 (Lexis 2007); Ohio Rev. Code Ann. §2943.031 (West
2006); Ore. Rev. Stat. §135.385 (2007); R. I. Gen. Laws §12–12–22
(Lexis Supp. 2008); Tex. Code. Ann. Crim. Proc., Art. 26.13(a)(4)
(Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, §6565(c)(1) (Supp. 2009);
Wash. Rev. Code §10.40.200 (2008); Wis. Stat. §971.08 (2005–2006).
18 PADILLA v. KENTUCKY
Opinion of the Court
The judgment of the Supreme Court of Kentucky is
reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Cite as: 559 U. S. ____ (2010) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–651
_________________
JOSE PADILLA, PETITIONER v. KENTUCKY
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
KENTUCKY
[March 31, 2010]
JUSTICE ALITO, with whom THE CHIEF JUSTICE joins,
concurring in the judgment.
I concur in the judgment because a criminal defense
attorney fails to provide effective assistance within the
meaning of Strickland v. Washington, 466 U. S. 668(1984), if the attorney misleads a noncitizen client regard
ing the removal consequences of a conviction. In my view,
such an attorney must (1) refrain from unreasonably
providing incorrect advice and (2) advise the defendant
that a criminal conviction may have adverse immigration
consequences and that, if the alien wants advice on this
issue, the alien should consult an immigration attorney. I
do not agree with the Court that the attorney must at
tempt to explain what those consequences may be. As the
Court concedes, “[i]mmigration law can be complex”; “it is
a legal specialty of its own”; and “[s]ome members of the
bar who represent clients facing criminal charges, in
either state or federal court or both, may not be well
versed in it.” Ante, at 11. The Court nevertheless holds
that a criminal defense attorney must provide advice in
this specialized area in those cases in which the law is
“succinct and straightforward”—but not, perhaps, in other
situations. Ante, at 11–12. This vague, halfway test will
lead to much confusion and needless litigation.
2 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
I
Under Strickland, an attorney provides ineffective
assistance if the attorney’s representation does not meet
reasonable professional standards. 466 U. S., at 688.
Until today, the longstanding and unanimous position of
the federal courts was that reasonable defense counsel
generally need only advise a client about the direct conse
quences of a criminal conviction. See, e.g., United States v.
Gonzalez, 202 F. 3d 20, 28 (CA1 2000) (ineffective
assistance-of-counsel claim fails if “based on an attorney’s
failure to advise a client of his plea’s immigration conse
quences”); United States v. Banda, 1 F. 3d 354, 355 (CA5
1993) (holding that “an attorney’s failure to advise a client
that deportation is a possible consequence of a guilty plea
does not constitute ineffective assistance of counsel”); see
generally Chin & Holmes, Effective Assistance of Counsel
and the Consequences of Guilty Pleas, 87 Cornell L. Rev.
697, 699 (2002) (hereinafter Chin & Holmes) (noting that
“virtually all jurisdictions”—including “eleven federal
circuits, more than thirty states, and the District of Co
lumbia”—“hold that defense counsel need not discuss with
their clients the collateral consequences of a conviction,”
including deportation). While the line between “direct”
and “collateral” consequences is not always clear, see ante,
at 7, n. 8, the collateral-consequences rule expresses an
important truth: Criminal defense attorneys have exper
tise regarding the conduct of criminal proceedings. They
are not expected to possess—and very often do not pos
sess—expertise in other areas of the law, and it is unreal
istic to expect them to provide expert advice on matters
that lie outside their area of training and experience.
This case happens to involve removal, but criminal
convictions can carry a wide variety of consequences other
than conviction and sentencing, including civil commit
ment, civil forfeiture, the loss of the right to vote, disquali
fication from public benefits, ineligibility to possess fire
Cite as: 559 U. S. ____ (2010) 3
ALITO, J., concurring in judgment
arms, dishonorable discharge from the Armed Forces, and
loss of business or professional licenses. Chin & Holmes
705–706. A criminal conviction may also severely damage
a defendant’s reputation and thus impair the defendant’s
ability to obtain future employment or business opportuni
ties. All of those consequences are “seriou[s],” see ante, at
17, but this Court has never held that a criminal defense
attorney’s Sixth Amendment duties extend to providing
advice about such matters.
The Court tries to justify its dramatic departure from
precedent by pointing to the views of various professional
organizations. See ante, at 9 (“The weight of prevailing
professional norms supports the view that counsel must
advise her client regarding the risk of deportation”).
However, ascertaining the level of professional competence
required by the Sixth Amendment is ultimately a task for
the courts. E.g., Roe v. Flores-Ortega, 528 U. S. 470, 477
(2000). Although we may appropriately consult standards
promulgated by private bar groups, we cannot delegate to
these groups our task of determining what the Constitu
tion commands. See Strickland, supra, at 688 (explaining
that “[p]revailing norms of practice as reflected in Ameri
can Bar Association standards . . . are guides to determin
ing what is reasonable, but they are only guides”). And we
must recognize that such standards may represent only
the aspirations of a bar group rather than an empirical
assessment of actual practice.
Even if the only relevant consideration were “prevailing
professional norms,” it is hard to see how those norms can
support the duty the Court today imposes on defense
counsel. Because many criminal defense attorneys have
little understanding of immigration law, see ante, at 11, it
should follow that a criminal defense attorney who re
frains from providing immigration advice does not violate
prevailing professional norms. But the Court’s opinion
would not just require defense counsel to warn the client
4 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
of a general risk of removal; it would also require counsel
in at least some cases, to specify what the removal conse
quences of a conviction would be. See ante, at 11–12.
The Court’s new approach is particularly problematic
because providing advice on whether a conviction for a
particular offense will make an alien removable is often
quite complex. “Most crimes affecting immigration status
are not specifically mentioned by the [Immigration and
Nationality Act (INA)], but instead fall under a broad
category of crimes, such as crimes involving moral turpi
tude or aggravated felonies.” M. Garcia & L. Eig, CRS
Report for Congress, Immigration Consequences of Crimi
nal Activity (Sept. 20, 2006) (summary) (emphasis in
original). As has been widely acknowledged, determining
whether a particular crime is an “aggravated felony” or a
“crime involving moral turpitude [(CIMT)]” is not an easy
task. See R. McWhirter, ABA, The Criminal Lawyer’s
Guide to Immigration Law: Questions and Answers 128
(2d ed. 2006) (hereinafter ABA Guidebook) (“Because of
the increased complexity of aggravated felony law, this
edition devotes a new [30-page] chapter to the subject”);
id., §5.2, at 146 (stating that the aggravated felony list at
8 U. S. C. §1101(a)(43) is not clear with respect to several
of the listed categories, that “the term ‘aggravated felonies’
can include misdemeanors,” and that the determination of
whether a crime is an “aggravated felony” is made “even
more difficult” because “several agencies and courts inter
pret the statute,” including Immigration and Customs
Enforcement, the Board of Immigration Appeals (BIA),
and Federal Circuit and district courts considering immi
gration-law and criminal-law issues); ABA Guidebook
§4.65, at 130 (“Because nothing is ever simple with immi
gration law, the terms ‘conviction,’ ‘moral turpitude,’ and
‘single scheme of criminal misconduct’ are terms of art”);
id., §4.67, at 130 (“[T]he term ‘moral turpitude’ evades
precise definition”).
Cite as: 559 U. S. ____ (2010) 5
ALITO, J., concurring in judgment
Defense counsel who consults a guidebook on whether a
particular crime is an “aggravated felony” will often find
that the answer is not ‘‘easily ascertained.” For example,
the ABA Guidebook answers the question “Does simple
possession count as an aggravated felony?” as follows:
“Yes, at least in the Ninth Circuit.” §5.35, at 160 (empha
sis added). After a dizzying paragraph that attempts to
explain the evolution of the Ninth Circuit’s view, the ABA
Guidebook continues: “Adding to the confusion, however,
is that the Ninth Circuit has conflicting opinions depend
ing on the context on whether simple drug possession
constitutes an aggravated felony under 8 U. S. C.
§1101(a)(43).” Id., §5.35, at 161 (citing cases distinguish
ing between whether a simple possession offense is an
aggravated felony “for immigration purposes” or for “sen
tencing purposes”). The ABA Guidebook then proceeds to
explain that “attempted possession,” id., §5.36, at 161
(emphasis added), of a controlled substance is an aggra
vated felony, while “[c]onviction under the federal acces
sory after the fact statute is probably not an aggravated
felony, but a conviction for accessory after the fact to the
manufacture of methamphetamine is an aggravated fel
ony,” id., §537, at 161 (emphasis added). Conspiracy or
attempt to commit drug trafficking are aggravated felo
nies, but “[s]olicitation is not a drug-trafficking offense
because a generic solicitation offense is not an offense
related to a controlled substance and therefore not an
aggravated felony.” Id., §5.41, at 162.
Determining whether a particular crime is one involving
moral turpitude is no easier. See id., at 134 (“Writing bad
checks may or may not be a CIMT” (emphasis added));
ibid. (“[R]eckless assault coupled with an element of in
jury, but not serious injury, is probably not a CIMT” (em
phasis added)); id., at 135 (misdemeanor driving under the
influence is generally not a CIMT, but may be a CIMT if
the DUI results in injury or if the driver knew that his
6 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
license had been suspended or revoked); id., at 136 (“If
there is no element of actual injury, the endangerment
offense may not be a CIMT” (emphasis added)); ibid.
(“Whether [a child abuse] conviction involves moral turpi
tude may depend on the subsection under which the indi
vidual is convicted. Child abuse done with criminal negli
gence probably is not a CIMT” (emphasis added)).
Many other terms of the INA are similarly ambiguous or
may be confusing to practitioners not versed in the intri
cacies of immigration law. To take just a few examples, it
may be hard, in some cases, for defense counsel even to
determine whether a client is an alien,1 or whether a
particular state disposition will result in a “conviction” for
purposes of federal immigration law.2 The task of offering
advice about the immigration consequences of a criminal
conviction is further complicated by other problems, in
cluding significant variations among Circuit interpreta
tions of federal immigration statutes; the frequency with
——————
1 Citizensare not deportable, but “[q]uestions of citizenship are not
always simple.” ABA Guidebook §4.20, at 113 (explaining that U.S.
citizenship conferred by blood is “ ‘derivative,’ ” and that “[d]erivative
citizenship depends on a number of confusing factors, including
whether the citizen parent was the mother or father, the immigration
laws in effect at the time of the parents’ and/or defendant’s birth, and
the parents’ marital status”).
2 “A disposition that is not a ‘conviction,’ under state law may still be
a ‘conviction’ for immigration purposes.” Id., §4.32, at 117 (citing
Matter of Salazar, 23 I. & N. Dec. 223, 231 (BIA 2002) (en banc)). For
example, state law may define the term “conviction” not to include a
deferred adjudication, but such an adjudication would be deemed a
conviction for purposes of federal immigration law. See ABA Guide
book §4.37; accord, D. Kesselbrenner & L. Rosenberg, Immigration Law
and Crimes §2:1, p. 2–2 (2008) (hereinafter Immigration Law and
Crimes) (“A practitioner or respondent will not even know whether the
Department of Homeland Security (DHS) or the Executive Office for
Immigration Review (EOIR) will treat a particular state disposition as
a conviction for immigration purposes. In fact, the [BIA] treats certain
state criminal dispositions as convictions even though the state treats
the same disposition as a dismissal”).
Cite as: 559 U. S. ____ (2010) 7
ALITO, J., concurring in judgment
which immigration law changes; different rules governing
the immigration consequences of juvenile, first-offender,
and foreign convictions; and the relationship between the
“length and type of sentence” and the determination
“whether [an alien] is subject to removal, eligible for relief
from removal, or qualified to become a naturalized citi
zen,” Immigration Law and Crimes §2:1, at 2–2 to 2–3.
In short, the professional organizations and guidebooks
on which the Court so heavily relies are right to say that
“nothing is ever simple with immigration law”—including
the determination whether immigration law clearly makes
a particular offense removable. ABA Guidebook §4.65, at
130; Immigration Law and Crimes §2:1. I therefore can
not agree with the Court’s apparent view that the Sixth
Amendment requires criminal defense attorneys to pro
vide immigration advice.
The Court tries to downplay the severity of the burden it
imposes on defense counsel by suggesting that the scope of
counsel’s duty to offer advice concerning deportation con
sequences may turn on how hard it is to determine those
consequences. Where “the terms of the relevant immigra
tion statute are succinct, clear, and explicit in defining the
removal consequence[s]” of a conviction, the Court says,
counsel has an affirmative duty to advise the client that
he will be subject to deportation as a result of the plea.
Ante, at 11. But “[w]hen 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.” Ante, at 11–12. This approach is problem
atic for at least four reasons.
First, it will not always be easy to tell whether a par
ticular statutory provision is “succinct, clear, and explicit.”
How can an attorney who lacks general immigration law
expertise be sure that a seemingly clear statutory provi
sion actually means what it seems to say when read in
8 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
isolation? What if the application of the provision to a
particular case is not clear but a cursory examination of
case law or administrative decisions would provide a
definitive answer? See Immigration Law and Crimes §2:1,
at 2–2 (“Unfortunately, a practitioner or respondent can
not tell easily whether a conviction is for a removable
offense. . . . [T]he cautious practitioner or apprehensive
respondent will not know conclusively the future immigra
tion consequences of a guilty plea”).
Second, if defense counsel must provide advice regard
ing only one of the many collateral consequences of a
criminal conviction, many defendants are likely to be
misled. To take just one example, a conviction for a par
ticular offense may render an alien excludable but not
removable. If an alien charged with such an offense is
advised only that pleading guilty to such an offense will
not result in removal, the alien may be induced to enter a
guilty plea without realizing that a consequence of the
plea is that the alien will be unable to reenter the United
States if the alien returns to his or her home country for
any reason, such as to visit an elderly parent or to attend
a funeral. See ABA Guidebook §4.14, at 111 (“Often the
alien is both excludable and removable. At times, how
ever, the lists are different. Thus, the oddity of an alien
that is inadmissible but not deportable. This alien should
not leave the United States because the government will
not let him back in” (emphasis in original)). Incomplete
legal advice may be worse than no advice at all because it
may mislead and may dissuade the client from seeking
advice from a more knowledgeable source.
Third, the Court’s rigid constitutional rule could inad
vertently head off more promising ways of addressing the
underlying problem—such as statutory or administrative
reforms requiring trial judges to inform a defendant on the
record that a guilty plea may carry adverse immigration
consequences. As amici point out, “28 states and the
Cite as: 559 U. S. ____ (2010) 9
ALITO, J., concurring in judgment
District of Columbia have already adopted rules, plea
forms, or statutes requiring courts to advise criminal
defendants of the possible immigration consequences of
their pleas.” Brief for State of Louisiana et al. 25; accord,
Chin & Holmes 708 (“A growing number of states require
advice about deportation by statute or court rule”). A
nonconstitutional rule requiring trial judges to inform
defendants on the record of the risk of adverse immigra
tion consequences can ensure that a defendant receives
needed information without putting a large number of
criminal convictions at risk; and because such a warning
would be given on the record, courts would not later have
to determine whether the defendant was misrepresenting
the advice of counsel. Likewise, flexible statutory proce
dures for withdrawing guilty pleas might give courts
appropriate discretion to determine whether the interests
of justice would be served by allowing a particular defen
dant to withdraw a plea entered into on the basis of in
complete information. Cf. United States v. Russell, 686
F. 2d 35, 39–40 (CADC 1982) (explaining that a district
court’s discretion to set aside a guilty plea under the Fed
eral Rules of Criminal Procedure should be guided by,
among other considerations, “the possible existence of
prejudice to the government’s case as a result of the de
fendant’s untimely request to stand trial” and “the
strength of the defendant’s reason for withdrawing the
plea, including whether the defendant asserts his inno
cence of the charge”).
Fourth, the Court’s decision marks a major upheaval in
Sixth Amendment law. This Court decided Strickland in
1984, but the majority does not cite a single case, from this
or any other federal court, holding that criminal defense
counsel’s failure to provide advice concerning the removal
consequences of a criminal conviction violates a defen
dant’s Sixth Amendment right to counsel. As noted above,
the Court’s view has been rejected by every Federal Court
10 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
of Appeals to have considered the issue thus far. See, e.g.,
Gonzalez, 202 F. 3d, at 28; Banda, 1 F. 3d, at 355; Chin &
Holmes 697, 699. The majority appropriately acknowl
edges that the lower courts are “now quite experienced
with applying Strickland,” ante, at 14, but it 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.
The majority seeks to downplay its dramatic expansion
of the scope of criminal defense counsel’s duties under the
Sixth Amendment by claiming that this Court in Hill v.
Lockhart, 474 U. S. 52 (1985), similarly “applied Strick
land to a claim that counsel had failed to advise the client
regarding his parole eligibility before he pleaded guilty.”
Ante, at 14. That characterization of Hill obscures much
more than it reveals. The issue in Hill was whether a
criminal defendant’s Sixth Amendment right to counsel
was violated where counsel misinformed the client about
his eligibility for parole. The Court found it “unnecessary
to determine whether there may be circumstances under
which erroneous advice by counsel as to parole eligibility
may be deemed constitutionally ineffective assistance of
counsel, because in the present case we conclude that
petitioner’s allegations are insufficient to satisfy the
Strickland v. Washington requirement of ‘prejudice.’ ” 474
U. S., at 60. Given that Hill expressly and unambiguously
refused to decide whether criminal defense counsel must
avoid misinforming his or her client as to one consequence
of a criminal conviction (parole eligibility), that case
plainly provides no support whatsoever for the proposition
that counsel must affirmatively advise his or her client as
to another collateral consequence (removal). By the
Court’s strange logic, Hill would support its decision here
even if the Court had held that misadvice concerning
parole eligibility does not make counsel’s performance
Cite as: 559 U. S. ____ (2010) 11
ALITO, J., concurring in judgment
objectively unreasonable. After all, the Court still would
have “applied Strickland” to the facts of the case at hand.
II
While mastery of immigration law is not required by
Strickland, several considerations support the conclu
sion that affirmative misadvice regarding the removal
consequences of a conviction may constitute ineffective
assistance.
First, a rule prohibiting affirmative misadvice regarding
a matter as crucial to the defendant’s plea decision as
deportation appears faithful to the scope and nature of the
Sixth Amendment duty this Court has recognized in its
past cases. In particular, we have explained that “a guilty
plea cannot be attacked as based on inadequate legal
advice unless counsel was not ‘a reasonably competent
attorney’ and the advice was not ‘within the range of
competence demanded of attorneys in criminal cases.’ ”
Strickland, 466 U. S., at 687 (quoting McMann v. Richard
son, 397 U. S. 759, 770, 771 (1970); emphasis added). As
the Court appears to acknowledge, thorough understand
ing of the intricacies of immigration law is not “within the
range of competence demanded of attorneys in criminal
cases.” See ante, at 11 (“Immigration law can be complex,
and it is a legal specialty of its own. Some members of the
bar who represent clients facing criminal charges, in
either state or federal court or both, may not be well
versed in it”). By contrast, reasonably competent attor
neys should know that it is not appropriate or responsible
to hold themselves out as authorities on a difficult and
complicated subject matter with which they are not famil
iar. Candor concerning the limits of one’s professional
expertise, in other words, is within the range of duties
reasonably expected of defense attorneys in criminal cases.
As the dissenting judge on the Kentucky Supreme Court
put it, “I do not believe it is too much of a burden to place
12 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
on our defense bar the duty to say, ‘I do not know.’ ” 253
S. W. 3d 482, 485 (2008).
Second, incompetent advice distorts the defendant’s
decisionmaking process and seems to call the fairness and
integrity of the criminal proceeding itself into question.
See Strickland, 466 U. S., at 686 (“In giving meaning to
the requirement [of effective assistance of counsel], we
must take its purpose—to ensure a fair trial—as the
guide”). When a defendant opts to plead guilty without
definitive information concerning the likely effects of the
plea, the defendant can fairly be said to assume the risk
that the conviction may carry indirect consequences of
which he or she is not aware. That is not the case when a
defendant bases the decision to plead guilty on counsel’s
express misrepresentation that the defendant will not be
removable. In the latter case, it seems hard to say that
the plea was entered with the advice of constitutionally
competent counsel—or that it embodies a voluntary and
intelligent decision to forsake constitutional rights. See
ibid. (“The benchmark for judging any claim of ineffec
tiveness must be whether counsel’s conduct so under
mined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result”).
Third, a rule prohibiting unreasonable misadvice re
garding exceptionally important collateral matters would
not deter or interfere with ongoing political and adminis
trative efforts to devise fair and reasonable solutions to
the difficult problem posed by defendants who plead
guilty without knowing of certain important collateral
consequences.
Finally, the conclusion that affirmative misadvice re
garding the removal consequences of a conviction can give
rise to ineffective assistance would, unlike the Court’s
approach, not require any upheaval in the law. As the
Solicitor General points out, “[t]he vast majority of the
Cite as: 559 U. S. ____ (2010) 13
ALITO, J., concurring in judgment
lower courts considering claims of ineffective assistance in
the plea context have [distinguished] between defense
counsel who remain silent and defense counsel who give
affirmative misadvice.” Brief for United States as Amicus
Curiae 8 (citing cases). At least three Courts of Appeals
have held that affirmative misadvice on immigration
matters can give rise to ineffective assistance of counsel,
at least in some circumstances.3 And several other Cir-
cuits have held that affirmative misadvice concerning
nonimmigration consequences of a conviction can violate
the Sixth Amendment even if those consequences might be
deemed “collateral.”4 By contrast, it appears that no court
of appeals holds that affirmative misadvice concerning
collateral consequences in general and removal in particu-
lar can never give rise to ineffective assistance. In short,
——————
3 See United States v. Kwan, 407 F. 3d 1005, 1015–1017 (CA9 2005);
United States v. Couto, 311 F. 3d 179, 188 (CA2 2002); Downs-Morgan
v. United States, 765 F. 2d 1534, 1540–1541 (CA11 1985) (limiting
holding to the facts of the case); see also Santos-Sanchez v. United
States, 548 F. 3d 327, 333–334 (CA5 2008) (concluding that counsel’s
advice was not objectively unreasonable where counsel did not purport
to answer questions about immigration law, did not claim any expertise
in immigration law, and simply warned of “possible” deportation
consequence; use of the word “possible” was not an affirmative misrep-
resentation, even though it could indicate that deportation was not a
certain consequence).
4 See Hill v. Lockhart, 894 F. 2d 1009, 1010 (CA8 1990) (en banc)
(“[T]he erroneous parole-eligibility advice given to Mr. Hill was ineffec-
tive assistance of counsel under Strickland v. Washington”); Sparks v.
Sowders, 852 F. 2d 882, 885 (CA6 1988) (“[G]ross misadvice concerning
parole eligibility can amount to ineffective assistance of counsel”); id.,
at 886 (Kennedy, J., concurring) (“When the maximum possible expo-
sure is overstated, the defendant might well be influenced to accept a
plea agreement he would otherwise reject”); Strader v. Garrison, 611
F. 2d 61, 65 (CA4 1979) (“[T]hough parole eligibility dates are collateral
consequences of the entry of a guilty plea of which a defendant need not
be informed if he does not inquire, when he is grossly misinformed
about it by his lawyer, and relies upon that misinformation, he is
deprived of his constitutional right to counsel”).
14 PADILLA v. KENTUCKY
ALITO, J., concurring in judgment
the considered and thus far unanimous view of the lower
federal courts charged with administering Strickland
clearly supports the conclusion that that Kentucky Su
preme Court’s position goes too far.
In concluding that affirmative misadvice regarding the
removal consequences of a criminal conviction may consti
tute ineffective assistance, I do not mean to suggest that
the Sixth Amendment does no more than require defense
counsel to avoid misinformation. When a criminal defense
attorney is aware that a client is an alien, the attorney
should advise the client that a criminal conviction may
have adverse consequences under the immigration laws
and that the client should consult an immigration special
ist if the client wants advice on that subject. By putting
the client on notice of the danger of removal, such advice
would significantly reduce the chance that the client
would plead guilty under a mistaken premise.
III
In sum, a criminal defense attorney should not be re
quired to provide advice on immigration law, a complex
specialty that generally lies outside the scope of a criminal
defense attorney’s expertise. On the other hand, any
competent criminal defense attorney should appreciate the
extraordinary importance that the risk of removal might
have in the client’s determination whether to enter a
guilty plea. Accordingly, unreasonable and incorrect
information concerning the risk of removal can give rise to
an ineffectiveness claim. In addition, silence alone is not
enough to satisfy counsel’s duty to assist the client. In
stead, an alien defendant’s Sixth Amendment right to
counsel is satisfied if defense counsel advises the client
that a conviction may have immigration consequences,
that immigration law is a specialized field, that the attor
ney is not an immigration lawyer, and that the client
should consult an immigration specialist if the client
wants advice on that subject.
Cite as: 559 U. S. ____ (2010) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–651
_________________
JOSE PADILLA, PETITIONER v. KENTUCKY
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
KENTUCKY
[March 31, 2010]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
In the best of all possible worlds, criminal defendants
contemplating a guilty plea ought to be advised of all
serious collateral consequences of conviction, and surely
ought not to be misadvised. The Constitution, however, is
not an all-purpose tool for judicial construction of a perfect
world; and when we ignore its text in order to make it
that, we often find ourselves swinging a sledge where a
tack hammer is needed.
The Sixth Amendment guarantees the accused a lawyer
“for his defense” against a “criminal prosecutio[n]”—not
for sound advice about the collateral consequences of
conviction. For that reason, and for the practical reasons
set forth in Part I of JUSTICE ALITO’s concurrence, I dis
sent from the Court’s conclusion that the Sixth Amend
ment requires counsel to provide accurate advice concern
ing the potential removal consequences of a guilty plea.
For the same reasons, but unlike the concurrence, I do not
believe that affirmative misadvice about those conse
quences renders an attorney’s assistance in defending
against the prosecution constitutionally inadequate; or
that the Sixth Amendment requires counsel to warn im
migrant defendants that a conviction may render them
removable. Statutory provisions can remedy these con
cerns in a more targeted fashion, and without producing
2 PADILLA v. KENTUCKY
SCALIA, J., dissenting
permanent, and legislatively irreparable, overkill.
* * *
The Sixth Amendment as originally understood and
ratified meant only that a defendant had a right to employ
counsel, or to use volunteered services of counsel. See,
United States v. Van Duzee, 140 U. S. 169, 173 (1891); W.
Beaney, Right to Counsel in American Courts 21, 28–29
(1955). We have held, however, that the Sixth Amend
ment requires the provision of counsel to indigent defen
dants at government expense, Gideon v. Wainwright, 372
U. S. 335, 344–345 (1963), and that the right to “the assis
tance of counsel” includes the right to effective assistance,
Strickland v. Washington, 466 U. S. 668, 686 (1984). Even
assuming the validity of these holdings, I reject the sig
nificant further extension that the Court, and to a lesser
extent the concurrence, would create. We have until today
at least retained the Sixth Amendment’s textual limita
tion to criminal prosecutions. “[W]e have held that ‘de
fence’ means defense at trial, not defense in relation to
other objectives that may be important to the accused.”
Rothgery v. Gillespie County, 554 U. S. ___, ___ (2008)
(ALITO, J., concurring) (slip op., at 4) (summarizing cases).
We have limited the Sixth Amendment to legal advice
directly related to defense against prosecution of the
charged offense—advice at trial, of course, but also advice
at postindictment interrogations and lineups, Massiah v.
United States, 377 U. S. 201, 205–206 (1964); United
States v. Wade, 388 U. S. 218, 236–238 (1967), and in
general advice at all phases of the prosecution where the
defendant would be at a disadvantage when pitted alone
against the legally trained agents of the state, see Moran
v. Burbine, 475 U. S. 412, 430 (1986). Not only have we
not required advice of counsel regarding consequences
collateral to prosecution, we have not even required coun
sel appointed to defend against one prosecution to be
Cite as: 559 U. S. ____ (2010) 3
SCALIA, J., dissenting
present when the defendant is interrogated in connection
with another possible prosecution arising from the same
event. Texas v. Cobb, 532 U. S. 162, 164 (2001).
There is no basis in text or in principle to extend the
constitutionally required advice regarding guilty pleas
beyond those matters germane to the criminal prosecution
at hand—to wit, the sentence that the plea will produce,
the higher sentence that conviction after trial might en
tail, and the chances of such a conviction. Such matters
fall within “the range of competence demanded of attor
neys in criminal cases,” McMann v. Richardson, 397 U. S.
759, 771 (1970). See id., at 769–770 (describing the mat
ters counsel and client must consider in connection with a
contemplated guilty plea). We have never held, as the
logic of the Court’s opinion assumes, that once counsel is
appointed all professional responsibilities of counsel—even
those extending beyond defense against the prosecution—
become constitutional commands. Cf. Cobb, supra, at 171,
n. 2; Moran, supra, at 430. Because the subject of the
misadvice here was not the prosecution for which Jose
Padilla was entitled to effective assistance of counsel, the
Sixth Amendment has no application.
Adding to counsel’s duties an obligation to advise about
a conviction’s collateral consequences has no logical stop
ping-point. As the concurrence observes,
“[A] criminal convictio[n] can carry a wide variety of
consequences other than conviction and sentencing,
including civil commitment, civil forfeiture, the loss of
the right to vote, disqualification from public benefits,
ineligibility to possess firearms, dishonorable dis
charge from the Armed Forces, and loss of business or
professional licenses. . . . All of those consequences are
‘serious,’ . . . .” Ante, at 2–3 (ALITO, J., concurring in
judgment).
But it seems to me that the concurrence suffers from the
4 PADILLA v. KENTUCKY
SCALIA, J., dissenting
same defect. The same indeterminacy, the same inability
to know what areas of advice are relevant, attaches to
misadvice. And the concurrence’s suggestion that counsel
must warn defendants of potential removal consequences,
see ante, at 14–15—what would come to be known as the
“Padilla warning”—cannot be limited to those conse
quences except by judicial caprice. It is difficult to believe
that the warning requirement would not be extended, for
example, to the risk of heightened sentences in later fed
eral prosecutions pursuant to the Armed Career Criminal
Act, 18 U. S. C. §924(e). We could expect years of elabora
tion upon these new issues in the lower courts, prompted
by the defense bar’s devising of ever-expanding categories
of plea-invalidating misadvice and failures to warn—not to
mention innumerable evidentiary hearings to determine
whether misadvice really occurred or whether the warning
was really given.
The concurrence’s treatment of misadvice seems driven
by concern about the voluntariness of Padilla’s guilty plea.
See ante, at 12. But that concern properly relates to the
Due Process Clauses of the Fifth and Fourteenth Amend
ments, not to the Sixth Amendment. See McCarthy v.
United States, 394 U. S. 459, 466 (1969); Brady v. United
States, 397 U. S. 742, 748 (1970). Padilla has not argued
before us that his guilty plea was not knowing and volun
tary. If that is, however, the true substance of his claim
(and if he has properly preserved it) the state court can
address it on remand.1 But we should not smuggle the
——————
1I
do not mean to suggest that the Due Process Clause would surely
provide relief. We have indicated that awareness of “direct conse
quences” suffices for the validity of a guilty plea. See Brady, 397 U. S.,
at 755 (internal quotation marks omitted). And the required colloquy
between a federal district court and a defendant required by Federal
Rule of Criminal Procedure 11(b) (formerly Rule 11(c)), which we have
said approximates the due process requirements for a valid plea, see
Libretti v. United States, 516 U. S. 29, 49–50 (1995), does not mention
Cite as: 559 U. S. ____ (2010) 5
SCALIA, J., dissenting
claim into the Sixth Amendment.
The Court’s holding prevents legislation that could solve
the problems addressed by today’s opinions in a more
precise and targeted fashion. If the subject had not been
constitutionalized, legislation could specify which catego
ries of misadvice about matters ancillary to the prosecu
tion invalidate plea agreements, what collateral conse
quences counsel must bring to a defendant’s attention, and
what warnings must be given.2 Moreover, legislation
could provide consequences for the misadvice, nonadvice,
or failure to warn, other than nullification of a criminal
conviction after the witnesses and evidence needed for
retrial have disappeared. Federal immigration law might
provide, for example, that the near-automatic removal
which follows from certain criminal convictions will not
apply where the conviction rested upon a guilty plea in
duced by counsel’s misadvice regarding removal conse
quences. Or legislation might put the government to a
choice in such circumstances: Either retry the defendant
or forgo the removal. But all that has been precluded in
favor of today’s sledge hammer.
In sum, the Sixth Amendment guarantees adequate
assistance of counsel in defending against a pending
criminal prosecution. We should limit both the constitu
tional obligation to provide advice and the consequences of
bad advice to that well defined area.
——————
collateral consequences. Whatever the outcome, however, the effect of
misadvice regarding such consequences upon the validity of a guilty
plea should be analyzed under the Due Process Clause.
2 As the Court’s opinion notes, ante, at 16–17, n. 15, many States—
including Kentucky—already require that criminal defendants be
warned of potential removal consequences.