Padilla Obligations

Understanding Padilla Obligations: The Duty to Advise and How to Fulfill It

Introduction: It has been over a decade since the U.S. Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), which fundamentally changed the responsibilities of criminal defense attorneys toward non-citizen clients. Padilla held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice regarding the immigration consequences of a guilty plea. In Florida, this duty is taken seriously: our Rules of Professional Conduct and various court rules underscore that attorneys must not remain silent or give misinformed reassurances about deportation risks. This guide will clarify what exactly you must advise, when and how to do so, and what resources and referral networks can help you meet this obligation effectively.

Scope of the Duty – “Affirmative, Competent Advice”: Under Padilla, it is ineffective assistance of counsel to fail to warn a client about deportation if the consequences are clear, or at least to warn that deportation may occur if the law is not straightforward. The Court emphasized that deportation is often “the most important part” of the penalty for non-citizen defendants. This means:

• No more silence or “I’m not sure” – You cannot dismiss immigration consequences as “collateral” or tell a client to seek advice elsewhere while proceeding with the plea uninformed. If you’re unsure, it’s your duty to research or consult an expert, not to say nothing. Florida courts have cemented this: a lawyer’s failure to advise (or worse, affirmative misadvice) on obvious immigration outcomes is deficient performance.
• Clear law vs. unclear law: If the immigration consequence is truly clear (e.g. a client pleads to an aggravated felony drug trafficking charge – you know this is virtually certain deportation), you must tell the client that deportation will definitely or almost definitely happen. If the law is uncertain (perhaps the statute’s classification is debatable), at minimum warn that there is a risk. In practice, err on the side of caution – don’t mince words. The IDP advisory on Padilla duties suggests using phrases like “this plea will make you deportable” or “could make you inadmissible in the future,” as appropriate.
• Consider all statuses: It’s not just about clients with green cards. Padilla obligations extend to any non-citizen: lawful permanent residents, visa holders, refugees, DACA recipients, and undocumented individuals. Each group might face different consequences (deportation, inadmissibility, loss of status, denial of relief). You should ask every client at intake: “Were you born in the U.S.? If not, what is your current immigration status?” Document the client’s answer. This is step one of fulfilling your duty – identifying non-citizens early.

Timing – Advise Early and Repeatedly: The worst scenario is discovering only at the plea hearing that your client isn’t a U.S. citizen. Florida’s plea colloquy (Rule 3.172(c)(8)) now forces the issue by requiring judges to ask or inform defendants about immigration consequences. Don’t wait for the judge’s warning. By that point, the plea deal is negotiated and pressure is high. Best practice is:

• Initial client meeting: Include immigration questions as part of your routine checklist (along with mental health, substance abuse, etc.). If the client is not a citizen, flag the file. Provide a basic warning from day one: “Because you’re not a U.S. citizen, this case could affect your ability to stay in the U.S. We will look at options to minimize that.”
• Before plea negotiations: Research the potential immigration outcome of the charges and any likely plea offers. Use tools like the ILRC Quick Reference or Florida crimes chart to see if the charge is a deportable offense or an aggravated felony. If unclear, contact an expert (e.g., Immigrant Defense Project’s hotline or local immigration attorneys).
• During negotiations: As you formulate plea offers or diversion proposals, keep the client’s immigration priorities in mind. For instance, if your non-citizen client’s main goal is to preserve eligibility for a green card in the future, you might avoid any plea that implicates moral turpitude. Communicate with the prosecutor about immigration-neutral alternatives (some Florida prosecutors are surprisingly open to this when it’s a minor tweak that doesn’t undermine justice – e.g., pleading to “accessory after the fact” with a 364-day sentence instead of the original charge with 365 days, to avoid an aggravated felony.
• At plea entry: Ensure the client fully understands the immigration consequences as you understand them. If it’s a sure thing (like “this plea will require your deportation”), have the client articulate that they understand this. It’s wise to put the advice in writing or on the record in some fashion – both to ensure understanding and to protect yourself. Some offices have the defendant sign a Padilla advisal form enumerating what was explained (language options are important here if the client is not fluent in English).

What Specifically to Advise: The advice should be concrete and personalized. Here’s a breakdown:

• Deportability and Inadmissibility: Explain whether the plea will make the person deportable (subject to removal if caught by ICE) or inadmissible (unable to get a future legal status or re-enter the U.S.). For example: “Because you are a resident, if you plead to grand theft with a $10,000 loss, that will make you deportable for an aggravated felony theft and you will likely be placed in removal proceedings.” Or, “If you take this withhold on a cocaine possession, immigration will still consider it a conviction and you will be deportable as a controlled substance offender – there is a very high chance ICE will pick you up.”
• Eligibility for relief: Sometimes the client may avoid immediate deportability but ruin future relief. For a LPR, mention cancellation of removal requirements (7 years residence, no aggravated felony) – “This plea avoids an aggravated felony, so if you end up in immigration court you could still ask a judge to let you stay.” Conversely, for an undocumented client, focus on how a conviction might bar future DACA, Temporary Protected Status, or legalization programs. If a client hopes to adjust status through a family member, highlight if a conviction triggers inadmissibility that has no waiver.
• Detention and Enforcement: Advise on what will happen procedurally. “If you are not a citizen, when you are sentenced to jail or even if you get probation, ICE might still come get you.” Florida’s experience shows that in some counties, ICE is alerted when non-citizens are booked or when certain charges are filed. If the client is on a detainer, explain: “Upon completing your sentence – or if you bond out – you might not be released; ICE could take you into custody.” (The ILRC detainer advisory notes ICE often picks up people post-bond.)
• Consequences of Trial vs. Plea: Padilla advice is usually about pleas, but you should also discuss trial outcomes. If the client wants to fight the case, ensure they know that a guilty verdict will carry the same or worse immigration fallout, possibly without the benefit of any negotiated charge reduction. Sometimes a plea to a lesser offense is better than risking conviction at trial on a deportable offense – or vice versa, if the only offer is terrible for immigration, the client might choose trial despite long odds (see Lee v. United States, 137 S. Ct. 1958 (2017), where the defendant said he’d have taken a chance at trial had he known deportation was certain). As the attorney, you must present these options frankly: “If we go to trial and lose on X, you will be deported; if we take the plea to Y, you might avoid deportation. What is more important to you?”

Documenting the Advice: To protect both your client and yourself, document that you gave immigration advice. Some tips:

• Include a note in the file or a letter to the client summarizing the discussion. E.g., “On 3/1/25, I advised Mr. ___ that a plea to ___ will make him deportable/inadmissible and that ICE may detain him. He understood and still wishes to accept the plea.”
• Use the court colloquy to your advantage. When the judge asks the defendant (per Rule 3.172(c)(8)) if they understand they could be deported, ensure the record reflects the understanding. If the client hesitates or seems confused, ask for a moment to confer – don’t let a half-hearted “yeah” slide if you suspect they truly don’t grasp it.
• If you truly cannot determine the immigration consequence (perhaps it’s an unprecedented scenario), consider seeking a continuance to research or consulting an immigration expert and memorializing that you did so. The Florida Supreme Court in Padilla cases expects counsel to either know or find out the answer, not to guess.

Getting Help – You’re Not Alone: Fulfilling Padilla obligations is challenging, but resources abound:

• Padilla hotlines: The Immigrant Defense Project runs a helpline for defense attorneys. In Florida, while no formal state-run resource exists, you can often get quick advice from organizations like Americans for Immigrant Justice (they have attorneys knowledgeable in crim-imm) or private immigration lawyers (through bar association referrals).
• Criminal-Immigration Specialists: Some Florida Public Defender offices have appointed an in-house immigration specialist or rely on outside counsel for consults. If your office has one – use them! If not, consider building a relationship with an immigration attorney in your area who you can call when tricky issues arise. (See the article on collaboration, Topic #7, for more on forming these partnerships.)
• Practice guides: Use the checklists and charts described in Part 1. For example, when advising a client, you could pull out IDP’s Conviction Checklist and quickly spot that a plea to a “crime of domestic violence” (e.g. battery on a spouse with injury) will trigger deportation for a green card holder. You might show the client the checklist as a visual aid – sometimes seeing “DEPORTABLE” in black and white makes the point more clear than legal jargon.

Padilla and Ethics – Beyond the Bare Minimum: Ethically, providing competent representation (Rule 4-1.1, Fla. Bar) now includes understanding key immigration repercussions. Florida ethics opinions (and ABA Formal Op. 466) suggest that if you’re not competent in this area, you must associate or consult with someone who is. In other words, it’s not acceptable to simply say “I don’t practice immigration, so I didn’t advise him.” The expectation is you will either learn the basics or bring in help. Also, maintain client confidentiality when seeking advice – you can describe hypotheticals to an expert without naming your client, or get the client’s consent if needed to share some info. The duty of loyalty means you should not encourage a plea that’s great for criminal purposes but destroys the client’s life via deportation unless the client, fully informed, still chooses that path. This is a change from pre-Padilla days where lawyers sometimes thought only the “direct” criminal outcome mattered.

Consequences of Breach (and How to Avoid Them): Failing to meet Padilla obligations can result in:

• Postconviction motions to vacate the plea: Your client (perhaps represented by new counsel) could file a Rule 3.850 motion claiming you were ineffective. Florida courts have granted relief when, for example, an attorney grossly underestimated the risk (telling a client a plea “should be okay” when in fact it guaranteed deportation). To avoid being on the wrong end of such a case, always keep notes of what advice was given and ideally have written proof the client understood the risk.
• Bar complaints or malpractice exposure: While rare, a non-citizen client who suffers deportation may complain that their lawyer never warned them. Having documentation and having followed the standard of care (which now includes Padilla competence) is your best defense. Note that since Padilla is constitutional law, claiming ignorance is not an excuse – prudent practitioners attend CLEs and stay updated, just as you would for changes in sentencing law or search and seizure law.
• Most importantly, a human consequence: losing a client’s trust. If your client later says, “why didn’t you tell me I’d be deported for this?” that is a devastating moment professionally and personally. It’s far better to have the difficult conversation upfront, even if it complicates the case in the short term. Clients have a right to make decisions with full knowledge of what’s at stake.

Best Practices Summary: To fulfill your Padilla duty in Florida:

1. Identify non-citizen clients early – ask every client about citizenship and status.

2. Investigate immigration consequences of the charges/plea – use charts, call experts, read practice advisories.

3. Advise clearly and concretely – in the client’s language if needed (get an interpreter; a translated written advisory form can help).

4. Document your advice – notes, forms, or on-record colloquy.

5. Seek help when needed – don’t guess at complex immigration law; leverage resources like IDP’s hotline or local immigration lawyers.

6. Advocate for immigration-safe outcomes – meeting your duty isn’t just warning, it’s also trying to avoid needless immigration damage (consistent with your client’s goals). This leads into effective plea-bargaining, which we cover in Topic #4.

Padilla obligations are now part of the fabric of criminal defense. By taking them seriously and integrating immigration considerations into your routine practice, you not only protect yourself from claims of ineffectiveness, you provide holistic, competent representation that could literally save your client’s future in this country. The remaining topics in this series build on this foundation – for instance, the next article deals with a critical decision point that often arises soon after arrest: whether posting bail will actually help or hurt your non-citizen client.