Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions: Should This Be Grounds to Withdraw a Guilty Plea?

In this Article, Professor Francis argues that non-citizen criminal defendants should be afforded greater latitude in withdrawing guilty pleas, when those pleas are made without awareness of potential immigration consequences. Moreover, the Article highlights the roles both judges and attorneys should play in ensuring that non-citizens do not enter into such uninformed pleas.

Noting that courts have characterized deportation as a collateral consequence of a criminal conviction, the article argues that deportation, following the passage of the Immigration and Naturalization Act of 1996, is unique in its severity and certainty. Many of the same due process considerations which underpin the requirement of advisement of direct consequences apply equally as strongly in the case of the collateral consequence of deportation; therefore, the Article argues, these policy considerations require that courts advise criminal defendants that if they are not citizens of the United States, entering a guilty plea may adversely impact their ability to stay in this country.

The Article proposes that bar associations develop universal standards requiring attorneys to determine the immigration status of all clients and to properly advise non-citizen clients of deportation risks of convictions. Further, failure to comply with these minimum standards should constitute the basis of an ineffective assistance of counsel claim. Finally, the Article calls on Congress and state legislatures to amend criminal procedural rules to require that all criminal defendants be advised that if they are not United States citizens, entering a plea of guilty or no contest to crimes may adversely impact their immigration status.