Advising Noncitizen Defendants on the Immigration Consequences of Criminal Convictions: The Ethical Answer for the Criminal Defense Lawyer, the Court, and the Sixth Amendment

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the client was a non-citizen; or, 2) the attorney gave misadvice. However, these holdings create perverse incentives for attorneys to implement a Don’t Ask/Don’t Tell policy by allowing an attorney to remain silent and fail to investigate immigration status to prevent a Sixth Amendment violation on information that a noncitizen may deem more important than the criminal sentence as well as creating lines in the responsibilities an attorney owes his client based upon stereotypical perceptions of citizenship. This Article addresses: (1) the unique role that immigration consequences have in the criminal court system that is separate and distinct from other consequences that have been deemed “collateral”; (2) the ethical dilemma that the courts have created for the criminal defense attorney when advising or not advising noncitizen clients on the immigration consequences of a criminal conviction; and (3) the obligations that criminal defense attorneys have to the court system that reinforce the attorney-client relationship while at the same time creating the foundation for better outcomes in a Sixth Amendment analysis. It argues that regardless of the Sixth Amendment law, an attorney’s ethical and moral duty is to advise his client as to the specific immigration consequences of a criminal conviction.