Holding of Padilla v. Kentucky to be Incorporated Into Federal Rules of Criminal Procedure

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In 2010, the Supreme Court of the United States, in the case of Padilla v. Kentucky, held that a defense attorney’s failure to advise the defendant concerning the risk of removal fell below the objective standard of reasonable professional assistance guaranteed by the Sixth Amendment.  Since then, Defendants who pled to certain criminal offenses that resulted in adverse immigration consequences have been able to challenge their pleas based on the holding in Padilla v. Kentucky

On December 1, 2013, an amendment to Rule 11(b)(1) of the Federal Rules of Criminal Procedure takes effect, requiring federal district court judges to inform the defendant during a plea colloquy, and ensure that he or she understands 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." 

This amendment is intended to implement the holding in Padilla v. Kentucky by providing a warning to non-citizen defendants.  However, it does not inform the defendant of the specific consequences of certain pleas.  It is critical for non-U.S. citizens who have been charged with a crime to contact experienced immigration counsel early in the criminal process in order to assess the consequences of a conviction and to work out a strategy with criminal counsel that would not jeopardize the client's immigration status.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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