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On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding and the creation of a two-tiered admonishment system on a defendant’s ability to remain in the United States as well as the confusion it causes for defense counsel and the courts. Part I discusses the history of the right to advice on the immigration consequences of a criminal conviction under the Sixth Amendment. Part II highlights some of the key points that were left unanswered by Padilla and explores the impediments to achieving Padilla’s goal of assisting noncitizen defendants in avoiding removal from the United States. Part III suggests ways to ensure that all noncitizen defendants are given adequate advice on the immigration consequences of criminal conviction now and in the future. This Article concludes that the Padilla decision was an incremental and positive step towards reform in criminal representation but that legislative action, increased implementation of professional standards, and future progressive litigation will be necessary before all defense counsel can consistently advise their noncitizen clients about the immigration consequences of a conviction. If lawyers fail to build on its promise, Padilla will not be the landmark decision it was meant to be.