"Padilla Motions" in California Criminal Immigration Law

A so-called "Padilla motion" is a motion to reverse a guilty plea for non-US-citizens whose attorney did not advise them of the immigration consequences of pleading guilty to a crime.

In 2010, the United States Supreme Court held, in a case called Padilla v. Kentuckythat a non-citizen criminal defendant who pleads guilty can later challenge their conviction--if his or her lawyer did not do a good enough job of informing him or her beforehand of the potential immigration consequences of the guilty plea. 1

Padilla applies only to defendants whose guilty verdict became final after March of 2010.2

Essentially, the "Padilla motion" is a way for non-citizens facing the severe immigration consequences of a criminal conviction -- which may include deportation -- to obtain post-conviction relief because of ineffective assistance of counsel.

Example: Manuel is a legal immigrant who has lived in the United States since he was six years old. He is accused of being involved in drug trafficking.

Manuel does not have the money to pay for an attorney and is assigned to a public defender who knows nothing about immigration law. The public defender tells Manuel that he should plead guilty in exchange for a lesser sentence--so he does so.

Then Manuel's sister finds out through internet research that a conviction on this charge could make Manuel deportable. Fortunately, Manuel has not yet been sentenced. So he borrows money from his sister and hires a new lawyer to file a motion to withdraw a guilty plea, in which he makes the Padilla argument.

If are facing deportation or other damage to your immigration status because you pled guilty without understanding the immigration consequences -- a California criminal defense lawyer who understands immigration law can help you -- even after you've been convicted.

Depending on the background of your case, a Padilla motion may make sense.

Donald Trump's election as US president--based in part on promises to speed up deportation of immigrants with criminal records--makes it all the more urgent for non-citizens with criminal convictions to seek help now.

In this article, our experienced criminal defense and immigration attorneys3 explain Padilla motions by addressing the following:

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. What are the Immigration Consequences of Criminal Convictions?

The immigration consequences of being found guilty of a crime have grown much harsher over the past few decades.4 As a result, the criminal defense of immigrants has become a particularly complicated and high-stakes matter--a problem which the Supreme Court may have had in mind when they decided the Padilla case.

Deportable crimes

The most extreme consequence of a criminal conviction for a non-citizen is of course deportation - being removed from the United States. If you are convicted of certain crimes, you may be deported even if your immigration status has always been legal.

There are several main categories of crimes that can lead to deportation. These are

  1. So-called "aggravated felonies."5 This includes dozens of violent and nonviolent crimes, such as murder, rape, certain theft crimes and certain white-collar crimes.6
  2. California drug crimes, including mere possession of a controlled substance (Health & Safety Code 11350 HS).7
  3. Certain violations of gun laws.8
  4. Domestic violence crimes.9
  5. So-called "crimes involving moral turpitude."10

If you are a non-citizen convicted of a deportable crime, the Department of Homeland Security may initiate deportation proceedings in an immigration court. But a successful Padilla motion will prevent you from being deported.

Inadmissible crimes

Another category of crimes with immigration consequences is so-called "inadmissible crimes." The most important inadmissible crimes are:

  1. Crimes involving moral turpitude,

  2. Drug crimes, and

  3. Multiple criminal convictions with sentences totaling five (5) years or more.

A conviction for an inadmissible crime will not make you deportable. But it will make you ineligible to receive important immigration benefits from the US government--which means you will not be able to apply for a green card or "adjustment of status", become a US citizen or enter the country after leaving it.

Again, though, a successful Padilla motion may allow you to avoid the serious consequences of a conviction for an inadmissible crime.

2. What is Padilla v. Kentucky?

The landmark 2010 Supreme Court case of Padilla v. Kentucky is where the concept of Padilla motions originated.

Hector Padilla was from Honduras. He had been a legal resident of the United States for over 40 years and had served in the US Armed Forces in Vietnam. But then he was accused of transporting a large amount of marijuana in his truck.11

Padilla's lawyer in his criminal case told him that he did not have to worry about his immigration status if he pled guilty because he had been in the country for so long. So Padilla pled guilty to a drug charge that was more or less certain to lead to deportation.12

The Sixth Amendment to the United States Constitution, which is part of the Bill of Rights, provides all criminal defendants criminal with the right to a fair trial.13 If a defendant's lawyer does a bad enough job, the defendant can argue that this right was violated by "ineffective assistance of counsel."14

Padilla then argued that his lawyer's incorrect advice about the immigration consequences of a guilty plea violated his Sixth Amendment rights.15 His case--Padilla v. Kentucky--made it all the way to the United States Supreme Court.

The Court held that the advice Padilla received from his lawyer was deficient enough to violate Padilla's Sixth Amendment rights, since his lawyer had not told him that his guilty plea would almost certainly lead to deportation.16

With this holding, the concept of a Padilla motion was born.

3. How Do I Bring a Padilla Motion?

A Padilla motion is an attempt to convince the court that a defendant facing deportation because of a guilty plea should be allowed to withdraw that plea and start again with a new trial--because his or her lawyer did not do a good enough job of warning him/her that deportation could result if s/he pled guilty.

According to Los Angeles criminal defense and immigration attorney Neil Shouse17:

"The Supreme Court's holding in Padilla is less than a decade old. Because of this, the law In this area is still unsettled. Lawyers and courts are in the process of figuring out how Padilla motions work in practice and how they interact with other protections the states and federal government give to criminal defendants facing deportation."

Based on the current state of the law, it looks like there are several ways to bring a "Padilla motion" if you have pled guilty to a crime in California courts. These are:

Motion to withdraw a plea

Penal Code 1018 PC states that California defendants may ask the court to let them withdraw a plea of guilty or no-contest. If the defendant had a lawyer when s/he pled guilty, the court may (but will not necessarily) grant this motion if both of the following are true:

  1. The defendant has not been sentenced yet (i.e., the judgment of conviction is not yet final), OR it is six (6) months or less after an order granting probation has been made in cases that do not involve jail time, AND
  2. The defendant can show "good cause."18

Even before Padilla v. Kentucky, California courts considered it "good cause" if a defendant did not realize the potential immigration consequences of a guilty plea.19 Since Padilla was decided, it's even clearer that a defendant probably has good cause to withdraw a plea if his/her lawyer did not adequately explain the immigration consequences of a guilty plea.

This form of Padilla motion is severely limited, though -- because the motion to withdraw a plea has to be filed before the final judgment of conviction. Many people do not realize that they're going to be deported until the Department of Homeland Security starts deportation proceedings--sometimes years after the judgment was final!

Direct appeal

Another way you can bring a Padilla motion is to directly appeal your criminal conviction.

A Padilla motion in the form of an appeal makes sense only if you pled guilty without understanding the immigration consequences of doing so. Most criminal appeals are made after a plea of not guilty. However, you can still appeal a conviction resulting from a guilty plea--it's just more complicated to do so.20

Ineffective assistance of counsel--the basic complaint in a Padilla motion--is a valid reason to appeal a conviction that resulted from a guilty plea 21 But in order to appeal a conviction resulting from a guilty plea, you have to first do the following:

  1. Make a written statement, signed by you and your attorney under oath, describing the constitutional basis for your appeal (in this case, ineffective assistance of counsel under Padilla v. Kentucky), and
  2. Based on this statement, get the trial court that convicted you to issue a "certificate of probable cause" confirming that the appeal is not frivolous.22

It's also important to be aware of the deadlines for filing a Padilla motion as an appeal.

For an appeal of a felony conviction in California, the deadline for filing both the appeal and the written statement described above is sixty (60) days after the criminal judgment.23 For an appeal of a misdemeanor conviction in California, the deadline is thirty (30) days after the judgment.24

These deadlines are tight, and if you miss them you are probably out of luck. As with the motion to withdraw a guilty plea, this method of bringing a Padilla motion will not be much help to people who do not find out that their guilty plea means they can be deported until long after they are sentenced.

Example: May has been in the United States legally since she moved here to go to college. She, along with several coworkers, is charged with a fraud offense relating to some shady dealings that took place at the real estate office where she works.
May is devastated by the criminal charges and hires a lawyer recommended by a friend. The lawyer advises her to plead guilty to conspiracy to commit fraud, which will involve a short prison sentence, without telling her about potential immigration consequences.
After May has been sentenced, she finds out from another friend that she has pled guilty to an aggravated felony, which makes her deportable. Luckily, she is still within the 60-day deadline for filing a direct appeal of a felony.
So May hires a new lawyer specializing in criminal appeals and successfully appeals her conviction based on Padilla v. Kentucky.

Petition for habeas corpus

In California, a criminal defendant can also bring a Padilla motion after s/he has been sentenced--in the form of a writ of habeas corpus (sometimes called a "habeas petition").25 A writ of habeas corpus in California challenges the legality of the state keeping the defendant in custody.26

You can argue in a habeas petition Padilla motion that you were only convicted because you pled guilty as a result of incompetent advice from your lawyer. The California courts offer a standardized form for filing a petition for writ of habeas corpus.

The major limitation of the writ of habeas corpus as a means of bringing a Padilla motion is that it can only be filed while you are in custody of the state. So you must be either in prison or on probation at the time of filing.27 If you find out that you may be deported only after you have served your sentence, you will not be able to file a Padilla motion as a habeas petition.28

Example : Let's return to our example from above of May. Let's say May's friend does not tell her about the immigration consequences of her conviction until after the 60-day deadline for filing an appeal.

But May is still serving her prison sentence. Therefore, she is reliable to hire an appellate lawyer and file a Padilla motion through a writ of habeas corpus.

Because of the tight deadlines for motions to withdraw pleas and direct appeals - and the custody requirement of habeas corpus petitions - some unlucky defendants who pled guilty based on bad attorney advice will have no way of "taking back" their plea through a Padilla motion.

Example: Rocky is originally from Taiwan and has lived in the United States legally for 20 years, since he was 12. He is charged with and pleads no contest to possession of methamphetamine for sale, a misdemeanor charge.

Rocky's lawyer does not discuss the possibility of immigration consequences with him. He is sentenced to three years' probation and a drug treatment program. Eight years later (!), the immigration authorities initiate deportation proceedings against him. It turns out that the drug offense to which he pled guilty means mandatory deportation.29

Rocky has no way of bringing a Padilla motion. He was sentenced years ago, so he can not make a motion to withdraw his plea or appeal his conviction. Because he is no longer serving his probation, he also can not bring a writ of habeas corpus.30

Therefore, Rocky will probably be deported.

4. What are the Requirements for a Successful Padilla Motion?

Regardless of how the motion is brought--as a motion to withdraw a plea, a direct appeal, or a writ of habeas corpus -- a successful Padilla motion needs to show three things:

  1. The defendant's conviction became final after the Padilla case was decided--so after March of 2010,
  2. The defendant received "constitutionally Insufficient" advice from his/her lawyer before pleading guilty, and
  3. "Prejudice" was the result.31

The latter two items on this list must be shown in any motion based on "ineffective assistance of counsel."32 What makes a Padilla motion special is that the second prong--the lawyer's advice being constitutionally Insufficient--is based on the lawyer's failure to advise the client about the immigration consequences of a guilty plea.

Conviction final after March 2010 (Chaidez v. United States )

In a 2013 case called Chaidez v. United States, the Supreme Court held that the decision in Padilla v. Kentucky does not apply retroactively. In other words, it does not apply to convictions that occurred before Padilla was decided.33

This means that the only defendants who can file successful Padilla motions are those whose convictions became final after March of 2010.

This does not mean that you need to have pled guilty after March of 2010. A conviction becomes final when all of a defendant's options for directly appealing his/her conviction have expired or been exhausted.

So all the deadlines for filing an appeal need to have passed. Or, if you appeal your guilty plea, the appeal needs to have been decided by a court.

If any of these things occurred after March of 2010, then you may file a Padilla motion.

This limitation leaves a lot of people out in the cold--even though they received the same insufficient advice from lawyers! Unfortunately, because this is a rule put in place by the Supreme Court of the United States in its interpretation of Padilla v. Kentucky, there is likely no way around it.

Constitutionally insufficient advice

In deciding Padilla's case, the Supreme Court spelled out what a criminal defense lawyer is required to do for a non-citizen client accused of a crime that may have immigration consequences:

  1. The lawyer must do some basic research into immigration law, which is an overwhelmingly complex field.
  2. If the law is not easy to understand or is not clear about the immigration consequences of a conviction, the lawyer just needs to advise their client that they may be at risk of deportation or other immigration problems.34
  3. But if the law is "truly clear" that deportation will result if the defendant pleads guilty--as it was in Padilla's case--the lawyer is absolutely required to tell their client this.35

If the lawyer fails to do all of this, then, according to Padilla v. Kentucky, their advice was constitutionally Insufficient.

Prejudice to the defendant

The "prejudice" prong of a Padilla motion is trickier than the "insufficient counsel" prong.

The overall rule in California is that there is prejudice only if there is a "reasonable probability" that the result of the criminal trial would have been different if the defendant had received better advice from his/her lawyer.36

If you pled guilty to a crime, there is almost certainly going to be a reasonable probability that you could have been found innocent if the case had gone to trial. Had you taken the case to trial, the prosecution would have been required to show that you were guilty beyond a reasonable doubt.

But what may be slightly harder in a California Padilla motion is showing that you would not have pled guilty if your lawyer had given you better advice. This is because California has a special requirement that judges--in addition to criminal defense lawyers--warn all defendants pleading guilty or no-contest that their immigration status may be affected.

Specifically, courts are required to inform these defendants that:

"If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." 37

As we discussed above, if you are charged with a crime, and a conviction for that crime will clearly result in you being deported, your attorney is required to tell you this--and his/her failure to do so can be the grounds for a successful Padilla motion. In this case, the warning from the immigration court that consequences may result if you plead guilty probably will not matter.

But let's say you plead guilty to a crime, and the law is unclear as to whether this crime necessarily leads to deportation. (For example, It could be a crime that may or may not be a crime Involving moral turpitude.38) If the immigration authorities then try to deport you, you could bring a Padilla motion arguing that your attorney should have informed you that deportation could result.

But you may not be able to show prejudice in your Padilla motion, because the trial court should have given you the generic warning quoted above. You may not be able to convince a court that you would have chosen not to plead guilty if you'd gotten a similar warning from your lawyer instead. 39

In any case, always seek the counsel of a good criminal / immigration lawyer with experience in post-conviction relief. S/he will know the best strategies for bringing a Padilla motion and fighting to spare you from the immigration consequences of a guilty plea.

Call us for help . . . 

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Call us for help

If you or a loved one is in need of help with Padilla motions and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in our office or by phone.

Our California immigration attorneys have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

To learn about the criminal defense of immigrants in Nevada, go to our page on the Nevada criminal defense of immigrants and our page on modifying or vacating past criminal convictions for immigrants, aliens and non-citizens in Nevada.

Legal References:

    1. Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1478 [legal basis of Padilla motions]. ("We granted certiorari... to decide whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.") (internal citations omitted)
    2. Chaidez v. United States, (2013) 133 S.Ct. 1103, at 1103.
    3. Our California criminal defense and immigration attorneys have Southern California law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices throughout the state conveniently located in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
    4. Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1478 [legal basis of Padilla motions]. 
    5. 8 USC § 1227 (a) (2) (A) (iii) [deportable offenses]. 
    6. 8 USC § 1101 (a) (43).
    7. 8 USC § 1227 (a) (2) (B) [deportable offenses].
    8. 8 USC § 1227 (a) (2) (C (C) [deportable offenses]. 
    9. 8 USC § 1227 (a) (2) (E [deportable offenses].
    10. 8 USC § 1227 (a) (2) (A) (i) [deportable offenses]. 
    11. Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1477 [legal basis of Padilla motions].
    12. Same at 1478.
    13. US Const., amend. VI.
    14. See Strickland v. Washington, (1984) 466 US 668, 686.
    15. Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1478 [legal basis of Padilla motions].
    16. Same, at 1486-1487. 
    17. Los Angeles criminal defense and immigration attorney Neil Shouse is a former Los Angeles County Deputy District Attorney with many years of criminal trial experience and experience helping clients secure post-conviction relief, including through Padilla motions. He is  Mr. Shouse represents clients at a number of locations of the California courts, including the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Alhambra courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.
    18. Penal Code 1018 PC [Padilla motion through motion to withdraw plea]. 
    19. People v. Superior Court (Giron), (1974) 11 Cal.3d 793.
    20. In re Chavez (2003) 30 Cal.4th 643, 649.
    21. Same, note 2.
    22. California Penal Code 1237.5 PC - Appeal process by defendant from judgment of conviction upon plea of guilty or nolo contendere or revocation of probation; certificate of probable cause; operative date [Padilla motion through appeal]. 
    23. California Rules of Court, Title 8, Division 1, Chapter 3, Article 1 Rule 8308 - Time to appeal [Padilla motion through appeal]. 
    24. California Rules of Court Title 8, Division 2, Chapter 3, Article 1 Rule 8853, subdivision (b) - Time to appeal [Padilla motion through appeal].
    25. People v. Gallardo (2000) 77 Cal.App.4th 971, 987.

      See also Sandra Williams, Motions to Vacate Based on Immigration Consequences [including through Padilla motion], OC Lawyer, June 2011.

    26. Penal Code 1473 (a) PC [habeas corpus, potential form of Padilla motion].
    27. Same.
    28. See People v. Chien, (2008) 159 Cal.App.4th 1283, 1290. 
    29. Same, at 1286.
    30. Same, at 1290-1291. ("Although unfortunate, the lack of an available remedy [such as a Padilla motion] is not a sufficient basis to extend the applicability of an express statutory remedy.")
    31. Padilla v. Kentucky, (2010) 130 S.Ct.1473, 1486-1487 [legal basis of Padilla motions]. ("Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. ")
    32. See also People v. Lewis (1990) 50 Cal.3d 262, 288. ("To establish entitlement to relief for [a California claim of] ineffective assistance of counsel [as in a Padilla motion] the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably likely that a more favorable determination would have resulted in the absence of counsel's failings.")
    33. Chaidez v. United States, (2013) 133 S.Ct. 1103, No. 11-820, at 1. 
    34. Padilla v. Kentucky, (2010) 130 S.Ct. 1473, 1483 [legal basis for Padilla motions].
    35. Same.
    36. People v. Lucas (1995) 12 Cal.4th 415, 436.
    37. Penal Code 1016.5 PC - Advisement concerning status as alien; reconsideration of plea; effect of noncompliance [can make it difficult to show prejudice in a California Padilla motion]. 
    38. 8 USC § 1227 (a) (2) (A) (i) [deportable crimes].
    39. See People v. Barrera (2010) Cal.App.4th - 2010 WL 2338125. See also People v. Borrell (2010) Cal.App.2d - 2010 WL 4868115.

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