Padilla at 10: Myths, Facts, and Tools for Immigration Consequences of Conviction

1On March 31st, Padilla v. Kentucky turned ten. The United States Supreme Court held in Padilla that criminal defense attorneys must advise their clients of the immigration consequences of conviction.2 Despite a clear mandate, Padilla compliance and resources remain low while Padilla litigation—including ineffectiveness claims—continues to rise. In this article, we dispel three myths about Padilla and share with you a new tool that may help Texas defense attorneys.

Myths and Facts

Myth 1: A Padilla “cheat sheet” can tell me the immigration consequences of any offense in the Texas Penal Code.

Fact: Immigration consequences depend not only on the offense, but also on a client’s criminal history, immigration status, and available options. An immigration consequences cheat sheet—e.g., this offense is a “crime involving moral turpitude” (CIMT) and could trigger immigration consequences—doesn’t suffice.

Let’s take an example.3 If your client is Mario, a Legal Permanent Resident (LPR) with no priors, who first entered the U.S. as an LPR 2 years ago, now charged with a State Jail Felony (SJF) theft: Mario will be rendered deportable by a “conviction for immigration purposes”—let’s assume deferred adjudication4— of this offense.5

But if your client is Maria, who is like Mario in all respects except that before becoming an LPR, she entered on a tourist visa 6 years ago: Maria won’t be rendered deportable by taking deferred adjudication for this offense6, but the final result will make her inadmissible7—meaning ineligible to return as an LPR from a trip home to see her family—and you’d need to advise her of that.

Now, let’s assume that, instead of an SJF theft, it’s a Class B. Mario won’t lose his green card as a result of that plea.8 But Martin, who is similar to Mario in all respects except that he had a prior theft conviction last year, will.9

And what about Mario’s eligibility for bond from immigration detention? Maria’s eligibility to naturalize (become a citizen)? Martin’s ability to apply for relief from removal in immigration proceedings?

We quickly see that a cheat sheet doesn’t cut it.

Accurately advising your client10 about how an offense will affect them—as to deportability, inadmissibility, eligibility for bond, and eligibility for relief from removal11— will depend not just on how immigration law categorizes the offense, but also on your client’s immigration status and prior criminal history.

Myth 2: I don’t need a Padilla consult for certain offenses.

Reality: Immigration law changes rapidly. What’s an immigration-safe plea one day may not be the next. We’ve seen the following major recent changes to crimmigration:

  • Major overhaul in the way the Fifth Circuit interprets 18 U.S.C. § 16(a) and thus the “crime of violence” aggravated felony ground and “crime of domestic violence” deportability ground12
  • Some pretrial diversion agreements considered convictions for immigration purposes13 and continuing litigation about the scope of that decision
  • Subsequent DWI conviction as a presumptive bar to “good moral character,” which is relevant for certain immigration purposes14
  • Manufacture/delivery conviction considered a “particularly serious crime” despite not being a drug trafficking aggravated felony15
  • Significant flip-flopping about whether Texas burglary is federal burglary16
  • A proposed rule by DOJ/DHS which would make individuals ineligible for asylum if convicted of a DWI, a controlled substance offense, a domestic violence offense, any felony, and more17

And we are awaiting two Supreme Court decisions argued this term: one on the future of the DACA program18; the other on whether certain crimes affect an LPR’s eligibility for cancellation of removal.19

Because this area of the law is dynamic, any time you represent a client who is not a U.S. citizen, you need a Padilla consult.

Myth 3: I don’t need to consult a Padilla attorney. I can just read the Immigration and Nationality Act.

Reality: This is akin to cracking open the Internal Revenue Code to file your taxes. You might get it right, but it’s smarter, cheaper, and less painful to consult an expert.

Crimmigration is one of the thorniest areas of the law. Courts have described the INA as “second only to the Internal Revenue Code in complexity”20 and “dizzying,”21 likening it to “King Minos’s labyrinth in ancient Crete.”22 A Supreme Court Justice has described voluntarily reading the statute as “masochistic,”23 and the Fifth Circuit bemoans that the law “yield[s] up meaning only grudgingly.”24

The Texas Court of Criminal Appeals agrees:

[Because] criminal law attorneys are generally not knowledgeable of specialized immigration law and may not understand the effect of a criminal conviction on a noncitizen . . . we [ ] expect [ ] that criminal law attorneys will rely on their immigration-law counterparts when representing noncitizens.25

Courts don’t expect you to be an immigration law expert. But they do expect you to contact one.

Tools

So, you need to consult a Padilla attorney. Where can you turn?

Many of Texas’s urban areas—including Dallas, Harris, Fort Bend, Webb, and Travis Counties—have Padilla attorneys within public defender and managed assigned counsel offices available to assist often for free. If you need help contacting them, feel free to reach either of the authors directly.

But what about Texas’s other 200+ counties? Until recently, there were few options available for criminal defense attorneys in rural or midsized counties.

Today, if you’re in the 3rd Administrative Judicial Region, you can use a tool called myPadilla. Available online at myPadilla.com, this tool allows defense attorneys to interview clients, submit secure intake forms, and receive individualized, written Padilla advice that ensures Sixth Amendment compliance.

If you represent an indigent client in any of the included counties, your access to the service is free through a pilot program grant from TIDC in partnership with Hays County. While this service is free through the pilot program for indigent cases in the 3rd Administrative Judicial Region, we hope the program can be expanded beyond the 3rd AJR in the future.  For now, feel free to reach out to myPadilla at to discuss your needs and how we can help.  For retained cases, whether in the 3rd Administrative Judicial Region or not, you may access myPadilla for a fee.  

Defense attorney feedback for myPadilla has been extremely positive:

  • “It’s the gold standard; the Rosetta Stone. It’s free to the indigent. Got to be nuts not to use it.”
  • “I can’t imagine not wanting to continue to use it once you try it. It was thorough and easy to use with my client.”
  • “myPadilla is a valuable user friendly tool that provides critical information in a comprehensive report to assist both attorneys and clients in making informed decisions regarding pending cases and immigration matters affecting the client.”
  • “myPadilla helped me feel confident giving my clients information about their criminal case and the consequences it could have on their immigration status.”
  • “It’s fast, accurate, and covers all contingencies.”
  • “It makes a very complex and important legal issue understandable for both the client and defense attorney.”

We invite you to visit myPadilla.com to take advantage of this program or reach out to with questions. We hope you find it a useful resource for representing immigrant clients.

Footnotes

  1. Geoff Burkhart is the Executive Director of the Texas Indigent Defense Commission. He can be reached at . Julie Wimmer is an immigration attorney with myPadilla. She can be reached at .
  2. Padilla v. Kentucky, 559 U.S. 356 (2010).
  3. These examples are not legal advice.
  4. Matter of Punu, 22 I&N Dec. 224 (BIA 1998).
  5. INA § 237(a)(2)(A)(i).
  6. INA § 237(a)(2)(A)(i); Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) (an LPR’s date of admission not necessarily the date a green card granted); INA § 101(a)(43)(G).
  7. INA § 101(a)(13)(C)(v); INA § 212(a)(2)(A)(i)(I).
  8. INA § 237(a)(2)(A)(i); INA § 237(a)(2)(A)(iii); INA § 101(a)(43)(G).
  9. INA § 237(a)(2)(A)(ii).
  10. See Ex Parte Torres, 483 S.W.3d 35 (Tex.Crim.App. 2016) (attorney ineffective where he told client to consult an immigration lawyer, said that the plea could result in immigration consequences, and recommended that client get an immigration lawyer if he ultimately faced immigration consequences); Ex Parte De Los Reyes, 350 S.W.3d 723 (Tex.App. – El Paso 2011) (finding that statement in plea papers did not satisfy counsel’s duty), rev’d on other grounds, 392 S.W.3d 675 (Tex.Crim.App. 2013); Ex Parte Romero, 351 S.W.3d 127 (Tex.App. – San Antonio 2011) (finding counsel’s duty not met by trial court admonishment), vacated on other grounds, 393 S.W.3d 788 (Tex.Crim.App. 2013).
  11. Ex Parte Cristian Aguilar, 537 S.W. 3d 122 (Tex.Crim.App. 2017) (extending Padilla to circumstance in which the consequence is “loss of legal nonimmigrant status” rather than removal).
  12. United States v. Reyes Contreras, 892 F. 3d 800 (5th Cir. 2018); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); INA § 101(a)(43)(F).
  13. Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017).
  14. Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019).
  15. Vetcher v. Barr, 953 F.3d 361 (5th Cir. 2020).
  16. United States v. Herrold, 941 F.3d 173 (5th Cir. 2019).
  17. Procedures for Asylum and Asylum Eligibility, 84 Fed. Reg. 69640-01 (proposed Dec. 19, 2019) (to be codified at 8 C.F.R. § 208).
  18. Department of Homeland Security v. Regents of the University of California, No. 18-587 (argued Nov. 12, 2019).
  19. Barton v. Barr, No. 18-725 (argued Nov. 4, 2019).
  20. Castro-O’Ryan v. U.S. Dept of Immigration & Naturalization, 847 F.2d 1307, 1311 (9th Cir. 1988) (internal citations omitted).
  21. Padilla at 378.
  22. Lok v. Immigration and Naturalization Service, 548 F.2d 37, 38 (2d Cir. 1977).
  23. Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2200 (2014).
  24. Kwon v. Immigration & Naturalization Serv., 646 F.2d 909, 919 (5th Cir. 1981).
  25. Aguilar at 127–28.
TCDLA
TCDLA
Geoff Burkhart
Geoff Burkhart
Geoff Burkhart is the Executive Director of the Texas Indigent Defense Commission. He can be reached at .
Julie Wimmer
Julie Wimmer
Julie Wimmer is an immigration attorney with myPadilla. She can be reached at
.
Previous Story

Opinion: Many Texas Judges Acting Inhumanely

Next Story

General Information on Immigration Issues During the COVID-19 Pandemic

Latest from Features