Thursday, June 27, 2013
César Cuauhtémoc García Hernández (Capital University Law School) has posted two articles on SSRN. The first is Criminal Defense after Padilla v. Kentucky (26 Georgetown Immigration Law Review 475 (2012)). Here is the abstract:
The Supreme Court’s decision in Padilla v. Kentucky involves criminal defense attorneys in immigration law as never before. Long the mediators between defendants and the state’s penal authority, these attorneys must now advise their noncitizen clients about the potential immigration pitfalls of a conviction. Just what advice is required, however, depends on the clarity of the immigration consequence. This article unpacks Padilla and the jurisprudential convergence of criminal law and immigration law to develop a theoretical framework based on close readings of the Immigration and Nationality Act’s crime-based grounds of removal. Applying this framework suggests that crimes that likely constitute controlled substances offenses or aggravated felonies require clear, unequivocal advice that conviction will lead to deportation, while offenses that might constitute crimes involving moral turpitude require general advice only.
The second is Strickland-Lite: Padilla's Two-Tiered Duty for Noncitizens (72 Maryland Law Review 844 (2013)). Here is the abstract:
The quarter-century-old ineffective assistance of counsel framework announced in Strickland v. Washington recognizes a Sixth Amendment duty to investigate the law and facts underlying a criminal defendant’s legal predicament. In Padilla v. Kentucky the Supreme Court of the United States for the first time extended the Strickland analysis to cover the right of noncitizen defendants to receive information about the immigration consequences of a conviction. Faced with the competing considerations of providing noncitizen criminal defendants with critical information about immigration consequences, on the one hand, and the burden on defense attorneys of researching immigration law, on the other hand, this Article argues that the Court split the difference and invented a “Strickland-lite” duty. Under Strickland-lite, the Court failed to require that criminal defense attorneys investigate the law and facts relevant to immigration consequences as fully as it has long required attorneys to do when investigating other aspects of a criminal case, including even immigration law provisions central to guilt or punishment. This Article locates Padilla within a quarter-century of Strickland analyses and contends that the new Strickland-lite approach conflicts with Strickland’s mandate and fails to remedy the problem of inaccurate advice for noncitizen criminal defendants that Padilla purports to remedy.