Informing Criminal Defendants of the Immigration Consequences of Their Convictions: The Trial Judge’s Duty

A noncitizen charged with a criminal offense faces a dual risk of serious consequences: in addition to the sentence that could be imposed as a result of his criminal conviction, a noncitizen defendant may also face severe immigration consequences, including removal from the United States, if he is convicted of a crime. We recommend that trial court judges advise noncitizen defendants of the potential immigration consequences of their criminal convictions so that immigrants are fully informed of their rights. In section I, we first explain the United States Supreme Court’s decision in Padilla v. Kentucky, which held that attorneys must advise their clients of the immigration consequences of their convictions. We demonstrate that trial court judges have a similar duty to advise noncitizen defendants because they have always played a role in ensuring effective assistance of counsel and ensuring knowing and voluntary pleas. In section II, we summarize the areas of immigration law in which a criminal conviction or the sentence imposed by a trial court judge can have serious implications for noncitizens. In section III, we examine the various approaches currently taken by states that have imposed a statutory duty on judges to advise noncitizens about the immigration consequences of their convictions. Based on an analysis of the strengths and weaknesses of these statutory advisements, we present a model judicial advisement in section IV that ensures a nonimmigrant defendant receives adequate advice and is fully informed about the potential immigration consequences of a criminal conviction