Counsel in the Maze: Padilla v. Kentucky’s Unkept Promise

Introduction: A Duty Born from One Man’s Story

In 2001, a 61-year-old Army veteran named Jose Padilla stood in a Kentucky courtroom about to plead guilty to transporting marijuana. Padilla had been a lawful permanent resident of the United States for over 40 years and even served in Vietnam. He trusted his lawyer’s reassurance that a man like him—an honorably discharged vet who had lived in America most of his life—“did not have to worry” about immigration consequences. That advice was disastrously wrong. Padilla’s guilty plea made his deportation virtually certain, a fact he discovered only after the deal was done. Shocked by the prospect of being exiled from the country he considered home, Padilla challenged his conviction, arguing that his attorney’s bad advice violated his Sixth Amendment right to effective counsel . In 2010, his case reached the U.S. Supreme Court, which answered with a landmark ruling: criminal defense attorneys must inform noncitizen clients of the risk of deportation before they plead guilty.

Padilla v. Kentucky was heralded as a game-changer – a recognition that for immigrants, “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence”. By tying deportation advice to the constitutional duty of defense lawyers, the Court hoped to prevent future injustices like the one Padilla endured. In theory, every accused noncitizen would now be armed with information about whether a guilty plea could lead to deportation, inadmissibility, bars on relief, or loss of citizenship prospects. In practice, however, Padilla’s promise often goes unfulfilled. The ruling created an obligation, but not the time, expertise, or structural support to meet it. In courtrooms across America, well-intentioned defense attorneys are scrambling through a maze of immigration law that few are equipped to navigate. The result is a widening gap between what the law requires and what lawyers on the ground can realistically provide. This essay explores that gap – the daunting learning curve, the practical challenges, and the human stories that illustrate why most criminal defenders remain unequipped to fully live up to Padilla v. Kentucky. 

An Impossible Learning Curve

When the Padilla decision came down, many veteran defense attorneys reacted with a mix of admiration and alarm. They understood why it was necessary, but they also knew what it would entail. “Criminal defense attorneys have expertise regarding the conduct of criminal proceedings,” Justice Samuel Alito wrote in a separate opinion, “They are not expected to possess – and very often do not possess – expertise in other areas of the law.” Expecting every defense lawyer to be an expert in immigration, Alito warned, was “unrealistic. The majority of the Court brushed aside that concern, but time has largely proven Alito right. The duty announced in Padilla amounted to an unfunded mandate on beleaguered public defense systems – a well-meaning requirement with no money or infrastructure to back it up. In short, the Court told lawyers what to do, but not how to do it.

To fulfill Padilla, a defense attorney must learn a whole new body of law – what some call “crimmigration” law, the knotty intersection of criminal and immigration statutes. This is not a casual weekend research project; it’s essentially adding a new specialty. “It’s a whole different field of law. It’s not something that criminal attorneys are used to keeping on top of. And the law changes constantly,” admitted one chief public defender in a large city. His counterpart in another jurisdiction put it even more bluntly: “Immigration law is so complex that your average public defender does not have the ability in and of themselves to become the immigration expert that they need to be.” These are lawyers at the front lines, sympathetic to Padilla’s purpose, yet painfully aware of their own limits. They describe immigration law as a “maze of hyper-technical statutes and regulations” – a maze that even specialists struggle to navigate. Now imagine a public defender with 100 or 200 open cases trying to find a few spare hours to wade into the Immigration and Nationality Act. It’s no surprise that many feel set up to fail.

Just how time-consuming would Padilla compliance be? Consider that national standards from decades past – long before collateral duties like immigration advice were contemplated – suggested that one lawyer should handle no more than 150 felony cases or 400 misdemeanors in a year. Those old caseload limits are now widely seen as too high, yet in reality many public defenders carry even more than that, often out of necessity. A recent study found that overwhelmed defenders end up triaging cases, unable to give each client the attention they deserve. And that study explicitly noted that today’s defense practice has an “expanded scope”, where lawyers must spend time on things like digital evidence and “advising clients on collateral consequences.” In other words, the job has gotten bigger, but the days haven’t gotten any longer. Every new obligation – no matter how important – competes with existing ones for a finite number of attorney hours. Immigration advice, with its complex analysis, can be a serious time sink. One survey of Padilla specialists reported that while some straightforward cases can be assessed in 10–20 minutes, other cases are far more time-intensive,especially if the client has old convictions or scant records that require digging through archive. When an attorney’s entire meeting with a client might last 10 minutes in a courthouse hallway, it’s easy to see how the meticulous research Padilla calls for often just doesn’t happen.

Knowing Your Client (and Their Status)

If Padilla’s first hurdle is a lack of immigration expertise, the second is a more basic problem: figuring out each client’s actual immigration status in the first place. Criminal lawyers are trained to ask about the facts of the alleged offense, not whether the client has a green card or U.S. citizenship. Before Padilla, a defense attorney might never inquire about a defendant’s birthplace or legal status – it simply wasn’t seen as relevant to the criminal case. Now it’s not only relevant; it’s essential. Professional standards and the Padilla decision itself make clear that defense counsel must promptly determine if a client is a citizen or not. As the American Bar Association’s plea guidelines explain, a lawyer can’t fulfill their duty if they don’t even know they’re dealing with a noncitizen.

But it goes deeper: “Merely knowing that your client is a noncitizen may not be enough,” cautions a practice advisory for defense lawyers. Immigration consequences often hinge on what kind of noncitizen someone is. Is the client an undocumented person? A lawful permanent resident (green card holder)? A refugee or asylee? A student visa holder? Each status comes with different rights and vulnerabilities. A plea bargain that might be harmless for a green card holder could be devastating for someone here on a temporary visa, and vice versa. The exact same criminal conviction can have radically different outcomes depending on the individual’s status. For example, a first-time shoplifting offense might be a deportable crime for a visa holder but not knock a long-time resident off their path to citizenship, or it might be forgivable under one set of immigration rules but not under another. The only way to know is to pin down the client’s immigration category and history. As one court put it, “criminal defense attorneys are obligated to determine the immigration status of their clients”, because without that, advising on consequences is guesswork at best.

In practice, this is no small chore. Clients themselves may not always understand their immigration status or its implications – especially juveniles or people who’ve been in the U.S. since childhood. Some might genuinely believe they are citizens (for instance, if they derived citizenship through a parent) when they are not, or vice versa. Language barriers and trust issues can further complicate these conversations. A client may hesitate to admit they’re undocumented for fear that even their own lawyer might judge them or report them. Public defenders must build rapport quickly and ask personal questions delicately to get the information they need. At the very start of representation, a good defense lawyer now has to play detective into their client’s personal history, piecing together documents and facts about entry dates, visas, green cards, or past interactions with immigration authorities. Only then can the attorney even begin to analyze how a potential plea will play out. It’s an added investigative layer that many offices were never designed or funded to handle. The ABA’s criminal defense standards urge counsel to be proactive on this front – to “take the initiative to learn about rules in this area rather than waiting for questions from the defendant.”. That’s excellent advice, but it assumes the lawyer has the bandwidth to do so. With crushing caseloads, a defender might only have a moment to ask, “You a U.S. citizen?” – and if the answer is “no,” there may be little time to dig deeper into what that truly means for the case.

The Moving Target of Immigration Law

Even if a defense attorney manages to identify a client’s precise immigration status and carves out time to research, they enter a world of law that is notoriously complex and perpetually in flux. The Supreme Court itself, in Padilla, acknowledged the “numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” In those murky cases, the Court said, a lawyer can satisfy their duty by advising that there may be immigration risks. But what if the lawyer can’t even tell whether the law is clear or unclear? As Justice Alito pointed out, determining if a particular conviction will make someone deportable is “often quite complex”. One major reason is that most deportation laws don’t list specific offenses by name (aside from a few obvious ones like drug trafficking or murder). Instead, they rely on broad categories like “crimes involving moral turpitude” or “aggravated felonies.” These are terms of art, and their definitions can be a riddle. For instance, “aggravated felony” sounds like it would mean a very serious crime – in everyday English, maybe a violent felony. In immigration-law land, however, an “aggravated felony” need not be “aggravated” or even a “felony” at all. It’s simply a label Congress has slapped on a long list of offenses, many of them neither violent nor classified as felonies under state law. Filing a false tax return, small-time theft, or even missing a court date can be an “aggravated felony” under the Immigration and Nationality Act’s ever-expanding list. The label is deceiving, but it carries an extraordinarily harsh punch: any noncitizen with an “aggravated felony” conviction is barred from almost all forms of relief from deportation and even from reentering the U.S. in the future. To properly advise a client, a lawyer must know these counterintuitive details. It’s not enough to apply common sense (which might say, “Oh, it’s just a minor offense, you’ll be fine”). Immigration law routinely defies common sense.

Another layer of complexity is the dynamic nature of the law. Immigration rules change – often and quickly. Court decisions, agency rulings, and shifting political winds constantly redefine the landscape. In the 1990s, for example, Congress passed drastic reforms that “drastically expanded the categories of criminal conduct that trigger removal” and simultaneously narrowed who can seek relief from deportation. The list of deportable offenses got longer, and many avenues that once allowed immigrants to avoid removal (like certain waivers or appeals) were cut off. The result is a regime that can require mandatory deportation for what most would consider minor crimes. In other scenarios, a lawful resident with one petty offense might technically avoid the “mandatory” deportation category, but still end up ineligible for any relief to stop their removal, depending on factors like how long they’ve lived in the U.S. It’s a maze of exceptions and gotchas: duration of residence, timing of convictions, types of sentences, family ties – all can affect the outcome.

Moreover, the interpretation of these laws can vary by jurisdiction. Circuit splits – where federal appeals courts in different regions disagree on how to classify a state offense under immigration law – are not uncommon. For years, lawyers debated what crimes counted as “crimes involving moral turpitude” or whether a state drug conviction matched a federal trafficking definition. An offense that gets a noncitizen deported in Texas (under Fifth Circuit case law) might, at least for a time, not have the same effect on a similarly situated defendant in California (under Ninth Circuit law). Eventually, the Supreme Court may resolve such splits, but in the meantime, a defense attorney’s advice could literally depend on where they are standing. And beyond the courts, administrative policy can shift with election results. One presidential administration may instruct immigration authorities to aggressively pursue deportations for certain offenses, while the next may prioritize differently. Policies like Deferred Action for Childhood Arrivals (DACA) or various prosecutorial discretion memos can mean the difference between a client being rapidly deported or being temporarily safe – and those policies can change overnight. A striking example came during the transition from the Obama to Trump administrations: an immigrant with a minor conviction who might have been low priority for deportation one year suddenly found themselves at the top of the list the next year when enforcement priorities changed. For a defense attorney trying to give solid advice, it’s like aiming at a moving target.

All of this makes precision incredibly difficult. The Supreme Court tried to offer a rough guideline: if the law is truly clear (say, the offense is explicitly listed in the immigration statute as causing deportation), the lawyer “must advise” the client of that specific consequence. If the law is unsettled or unclear, the lawyer can satisfy their duty by saying there is a risk of adverse immigration outcomes. But distinguishing clear from unclear itself requires expertise. Staying current with this fast-evolving field means constant study: reading new court opinions, attending specialized trainings, consulting practice advisories from immigration advocacy groups. It’s a full-time job, and public defenders already have a full-time job. No wonder many feel that Padilla, while laudable, asked them to perform an ethical tightrope walk without a safety net.

Consequences Beyond Deportation: A Web of Effects

When we talk about Padilla, we often shorthand it as “advising about deportation.” But one of the challenges for defense attorneys is that immigration consequences are not just about deportation. They are multifaceted and sometimes surprisingly subtle. A criminal conviction can affect an immigrant client in at least four major ways: deportability, inadmissibility, ineligibility for relief, and bars to naturalization. Each of these is a distinct concept in immigration law, and each can be triggered by different offenses. Part of being Padilla-competent is understanding this entire web, not just the headline issue of deportation.

• Deportability: Certain convictions will make a noncitizen deportable – meaning the government can arrest and remove them from the United States, even if they’ve been here lawfully for years. Padilla’s own case was a classic example: his drug-trafficking plea made him deportable under federal law. If a client is a lawful permanent resident (green card holder) or someone with a visa, and they plead guilty to, say, an offense classified as an “aggravated felony” or certain controlled substance crimes, they become deportable as soon as the conviction is final. That’s obviously a crucial thing to warn about – “If you take this plea, you will be removed from the country.” The Supreme Court said when the deportation outcome is clear and near-automatic, “the duty to give correct advice is equally clear.”

• Inadmissibility: Separate from deportability is the concept of being inadmissible. Inadmissibility affects people seeking to enter or remain in the U.S. in a lawful status. A conviction can bar an undocumented client from ever legalizing their status, or prevent a client abroad (or one who leaves the U.S.) from coming back. For instance, a plea deal for a noncitizen who doesn’t have a green card might not trigger immediate deportation (especially if they’re not in the system’s radar), but if they ever try to adjust status or re-enter the U.S., that conviction could be a brick wall. Certain offenses like crimes involving moral turpitude (a notoriously vague category) or controlled substance violations make a person inadmissible. Defense counsel should ideally flag this: “By pleading guilty, you might not get deported tomorrow, but you’ll be inadmissible – you won’t be able to get a green card or even visit legally in the future.” That’s a tough message to deliver, especially if the client’s life plans involve staying here long-term. Yet without it, the person might plead not realizing they are trading away a future chance at legalization or travel.

• Ineligibility for Relief: Not all noncitizens who are deportable will actually be deported – some have avenues to fight it or ask for mercy. These avenues are called relief from removal, and they include things like asylum, cancellation of removal (a kind of forgiveness for those with long ties in the U.S.), or various waivers. Many of these forms of relief have criminal bars. For example, anyone with an aggravated felony conviction is ineligible for most forms of relief, including asylum. They also cannot even ask an immigration judge for cancellation of removal if they’re a permanent resident who falls short of certain residency years. A conviction for a “particularly serious crime” (a term used in asylum law) will bar someone from asylum or refugee status. These consequences are more technical, but no less important. It means that even if a client isn’t automatically deportable, a conviction might take away any lifeline they would have if the government later tries to deport them for some other reason. For instance, an immigrant who has lived here 20 years and has U.S. citizen children might normally be able to ask an immigration judge to cancel their deportation on hardship grounds – but if they have a certain conviction on their record, that door slams shut. Defense attorneys should weigh whether pleading to one count vs. another could preserve a client’s eligibility for relief. It’s highly nuanced; sometimes the difference between a 364-day sentence and a 365-day sentence on a minor charge is the difference between being eligible for relief or noti. (Under immigration law, a 365-day sentence, even if suspended, can turn a misdemeanor into an “aggravated felony” in the eyes of ICE, whereas a 364-day sentence might avoid that category.) These tiny details can make a life-changing difference – and padlocked relief is a consequence just as real as deportation, though harder for a layperson to grasp.

• Bars to Naturalization: The ultimate dream for many immigrant clients is U.S. citizenship. A criminal conviction can delay or destroy that dream. To naturalize, one must show “good moral character” for a statutory period (usually 5 years) prior to applying. Certain convictions automatically prevent a finding of good moral character – for instance, any crime classified as an aggravated felony, if it was on the books after November 1990, is a permanent bar to citizenship. Other offenses create a temporary bar (for the 5- or 3-year period) – for example, a single DUI might not bar citizenship outright, but multiple offenses or a probationary period might extend the time before one can show the requisite good character. Defense attorneys should warn: “This could derail your ability to become a citizen.” It’s an especially poignant consequence for long-term immigrants who see citizenship as protection from deportation and the ultimate mark of belonging. Pleading guilty in a rush today might mean remaining a legal outsider forever.

Each of these types of consequences – deportation, inadmissibility, loss of relief, bar to naturalization – operates on different triggers. The nuances are endless. What if a client plans to travel abroad for their job? Even a minor conviction could get them stuck outside, denied reentry as inadmissible. What if the client is a refugee who fled persecution? A conviction might make them deportable back to the country they escaped (unless they qualify for withholding of removal, another complex form of relief). There are also secondary effects: some convictions can lead to mandatory immigration detention, meaning if the client is picked up by ICE, they can’t even be released on bond while fighting their case. A defense attorney apprising a client properly would ideally cover all these angles – essentially giving a short seminar on immigration law as it pertains to the client’s situation. It’s a tremendous amount of information to convey in the pressure-cooker environment of plea negotiations. Little wonder that many lawyers default to a very generic warning: “This might affect your immigration status; you should consult an immigration lawyer.” Indeed, some jurisdictions have responded to Padilla by requiring judges to issue a brief warning to all defendants, something like: “If you are not a U.S. citizen, a plea of guilty may result in deportation or other immigration consequences.” Such blanket advisals, while better than nothing, barely scratch the surface of what a defendant truly needs to know. The Padilla ruling intended to end the era of surprise deportations and hidden consequences, but in most courtrooms, those consequences are still effectively hidden in plain sight.

Structural Limits: When Good Intentions Aren’t Enough

At its core, Padilla v. Kentucky exposes a structural failure in our justice system. We have long treated criminal and immigration law as separate realms – “separate silos,” as some say – but for noncitizen defendants, they collide in one high-stakes moment: the plea decision. The Supreme Court, to its credit, recognized that reality and tried to bridge the silos by extending defense counsel’s duties. However, the public defense infrastructure was (and still is) ill-equipped for that bridge. Public defender offices are famously under-resourced. Many are underfunded, understaffed, and overworked, struggling to meet even the core demands of criminal representation. Padilla added an entire new dimension to their workload without adding a single dollar of funding. It’s no surprise that some public defender administrators bristled, calling Padilla an “unfunded mandate” on par with the grand promises of Gideon v. Wainwright (the 1963 case that guaranteed counsel for the poor but left funding to political whims). When the mandate is high and resources are low, something has to give.

One structural issue is the patchwork nature of indigent defense in the U.S. There is no unified national public defender system. Each state, sometimes each county, does things differently. As the California study illustrated, where you are can determine whether you have access to an immigration resource at all. Some progressive cities and states (New York, California, etc.) have invested in training and hiring immigration experts in defender offices, often spurred by Padilla. But many jurisdictions have done little or nothing. 

Public defender offices themselves, even when aware of the Padilla obligation, face triage decisions. Training every single staff attorney to be conversant in immigration law is ideal but hard to achieve. Many offices have instead adopted a “Padilla specialist” model – one or a few attorneys who either handle all the noncitizen cases or serve as internal consultants. This is a good step, but it introduces delay and extra layers (attorneys have to recognize the issue, reach out to the specialist, wait for advice, etc.). And in offices with extreme caseload pressure, the specialist model can still fall short because the volume of inquiries may overwhelm the available experts. The Stanford Law Review study of California found that most large counties did embed immigration experts (either on staff or via contracted nonprofits like the Immigrant Legal Resource Center), but many medium and smaller counties did not invest in any such expertise. Budget constraints, lack of political will, or simply lower awareness all play a role. Some counties opted to rely on ad hoc phone calls to outside lawyers, or to have one defender who “knew a bit” about immigration law take on the task informally – often without extra pay or reduced criminal caseload to compensate. In the least-prepared locales, nothing at all was done; Padilla was essentially ignored on an institutional level, leaving individual lawyers to fend for themselves.

Even where there is commitment, funding is a limiter. Public defense is generally financed by state or local governments, many of which are perpetually in a budget crunch. Hiring immigration counsel or conducting comprehensive trainings costs money that isn’t always available. Some jurisdictions have sought grants or partnered with nonprofits to fill the gap, but those solutions can be piecemeal and temporary. A few states have passed laws to bolster Padilla compliance – for example, creating statutory requirements for judges to confirm that a defendant received immigration advice, or funding resource centers to support defenders. Those efforts are still the exception, not the norm. By and large, Padilla’s mandate arrived as an expansion of duty without an expansion of capacity.

Conclusion: The Unfulfilled Promise

Big ideas often collide with practical obstacles, yielding unexpected outcomes. Padilla v. Kentucky is a classic case of such a collision in the legal world. The big idea was straightforward and just: no one should be hauled off in shackles to a land they barely know because their own lawyer failed to warn them. In the abstract, virtually everyone agrees with that principle. Padilla’s unanimous chorus of support from immigrant rights advocates, defense attorneys, and even prosecutors (some of whom appreciated the clarity it could bring to plea deals) showed a rare alignment of values: a desire for fundamental fairness in a system that links criminal justice to immigration punishment.

Yet, more than a decade later, Padilla’s promise remains only partially realized. The narrative that emerges is not one of obstinate lawyers refusing to do their job (though a few may fit that bill), but rather a story of good people caught in a system that hasn’t adapted to the new demands. It’s a story of a defense attorney frantically flipping through an immigration handbook as the judge waits, of a public defender office begging the county board for funds to hire an expert and being told no, of a noncitizen defendant unknowingly accepting a deal that fulfills one sentence only to trigger another, far more devastating sentence – exile.

The structural disconnect is clear: we imposed a requirement on individual attorneys without ensuring the structure around them could support it. Padilla made immigration advice a constitutional duty, but it did not magically make immigration lawyers out of criminal lawyers. It did not provide extra hours in the day or extra dollars in the budget. In many places, it didn’t even provide training; one study found that some counties offered no training at all to their defenders on immigration consequences. The result is predictably uneven. Where resources and training exist, noncitizen defendants are far better off – they have a fighting chance to make informed choices and, if possible, to avoid catastrophic immigration outcomes. Where resources are lacking, Padilla can be a dead letter. A New Yorker-style human interest piece could easily be written about a small-town lawyer who, motivated by Padilla, tried her best to self-educate on immigration law and help her clients, only to find herself overwhelmed and demoralized as she realized the depth of the maze.

To truly fulfill Padilla, broader changes are needed. Public defense offices need funding specifically earmarked for immigration expertise – whether through hiring specialists, contracting with organizations, or building libraries of resources. Law schools and bar associations have begun to step up, offering “Crimmigration” CLE courses and clinical programs pairing law students with public defenders to assist on Padilla issues. These efforts are promising but patchy. Some advocates have even called for a “Padilla hotline” – a nationwide toll-free service where any defense attorney can get quick advice from an immigration attorney about a case. Projects along these lines exist in a few regions (New York, for example, has an Immigrant Defense Project hotline), but nothing nationwide yet. Ultimately, systemic reform may be required: either we treat the right to immigration advice as important enough to provide immigrants their own counsel (an idea that has gained traction in the context of deportation proceedings – so-called “universal representation” for immigrants), or we invest heavily in making every criminal defender at least conversant in immigration law.

Until such changes take root, many defense lawyers will continue to feel they are muddling through, doing the best they can but always fearing they’ve missed something. And many immigrants will continue to receive less-than-complete counsel, with life-altering consequences. Padilla v. Kentucky was supposed to be a story with a happy ending – a triumph of common sense and justice. Instead, it has become a more nuanced, cautionary tale: a reminder that lofty court decisions mean little unless backed by practical capability. It’s not that Padilla was wrong; it was right, morally and legally. But it entrusted a very heavy responsibility to a group of professionals who, however heroic, were already overburdened and underprepared to carry it out alone.

In a perfect world, every noncitizen accused of a crime would have both a criminal defense attorney and an immigration attorney working in tandem – or a single attorney with dual expertise – to ensure no plea is entered blind. We are not there. Until we are, Padilla’s requirement will continue to be honored in the breach as much as in the observance. The Supreme Court opened the door to a more just system, but it’s up to us – legislatures, courts, and communities – to walk through that door and provide the tools to make it reality. Padilla v. Kentucky lit a light; now we must not let it flicker out in the gloom of practical neglect. The promise that no defendant like Jose Padilla will be left in the dark about their fate is a promise we still have to keep.