Friday, December 7, 2012

Proposal to add judicial admonishment about immigration to FRCP 11

César Cuauhtémoc García Hernández

The committee charged with enacting and amending the Federal Rules of Criminal Procedure is currently considering an amendment to Rule 11 that would require federal trial court judges to tell defendants that a conviction may result in adverse immigration consequences. Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure (September 2012). If enacted, the text would “expand[] the colloquy under Rule 11 to require advising a defendant of possible immigration consequences when a judge accepts a guilty plea.” Id. at 26.

The proposed amendment is a response to the Supreme Court’s recognition in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that immigration consequences are often inextricably tied to criminal proceedings and uniquely severe, the committee noted. According to the memo distributing the proposed change, “a majority of the advisory committee concluded…that deportation is qualitatively different from other collateral consequences that may follow from a guilty plea….” Id. at 27.

As currently written, the proposal would add a section (O) to FRCP 11(b)(1) that provides:

“Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following….that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.”
Id. at Appendix D-7. To avoid having the judge attempt to discern whether a particular defendant is a United States citizen or not—a question that is sometimes murky—the amendment would require that the court admonish every defendant. Id. at Appendix D-5.

Whether this is a wise move remains to be seen. I’m included to think it is. First, many states already impose a similar requirement on trial judges. Indeed, the Padilla Court cited 22 such state requirements. 130 S. Ct at 1486 n.15. Second, the proposal is sufficiently broad that it doesn’t overly threaten to pit a defense attorney who has properly advised her client that the client won’t face immigration consequences against a judge who is saying she might. I’ve seen some anecdotal reports of this happening and find it worrisome.

My biggest concern with adding this language to the Rule 11 allocution isn’t really about the proposed language. My concern is just that it won’t have much impact on defendants; rather, I suspect that it will become just another line in a pro forma soliloquy.

It’s worth emphasizing that this language hasn’t yet been added to Rule 11. The Advisory Committee on Criminal Rules, then the Judicial Conference of the United States approved it. That’s not the end of the process, however, The Judicial Conference forwarded the proposed amendment to the Supreme Court for its consideration with a recommendation that it be adopted. The Supreme Court has not announced a decision.

César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and publisher of, a blog about the convergence of criminal law and immigration law, which was ranked among the 100 best law blogs of 2012 by the ABA Journal. Take a minute to vote for as your favorite source of legal information by going to the ABA Journal's web site and finding listed in the "niche" category. A version of this article appears on

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