THE ROLE OF THE U.S. CONSTITUTION ANDIMMIGRANTS' RIGHTS:REMOVAL OF REMEDIES AND THE ADMISSION OF ASIXTH AMENDNENT RIGHT TO COUNSEL
Steven L. Walden
A. The Issue: Competent Counsel for the Noncitizen Defendant
For almost 100 years, Congress has expanded the array of deportable offenses, while simultaneously removing almost all formsof relief for noncitizens.
Today, a noncitizen is automaticallydeportable for an aggravated felony conviction, as defined byCongress.
However, the actual offense need not be aggravated, afelony, or a conviction for immigration purposes. For example, aTexas misdemeanor theft charge with twelve months deferredadjudication probation is an aggravated felony conviction for immigration purposes.
It is irrelevant that the actual offense was amisdemeanor, non-aggravated, and not a conviction.Furthermore, until
Padilla v. Kentucky
criminal defenseattorneys had no legal duty to provide effective assistance of competent counsel to their noncitizen clients regarding the adverseimmigration consequences associated with a criminal plea.
, the Court recognized that it was responsible under the U.S.Constitution to ensure that noncitizens had a right to effective
, Thurgood Marshall Law Review (2011-2012), Juris DoctorateCandidate (2012), Thurgood Marshall School of Law; Masters of Science (2008),Tarleton State University. I would like to express gratitude to my wife, DebbieWalden, for her unwavering support and encouragement, and also to Professor Faith Joseph Jackson, Dean Fernando Colon and Judge Lupe Salinas for their advice and guidance throughout my law school career.
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).
Immigration and Nationality Act of 1952, § 237(a)(2)(A)(iii) (codified at 8 U.S.C.§ 1227(a)(2)(A)(iii) (2008)).
Immigration and Nationality Act of 1952, §§ 101 (a)(43)(G), 101(a)(48) (codifiedat 8 U.S.C. §§ 1101(a)(43)(G), 1101(a)(48) (2011)).
, 130 S. Ct. 1473.