OPINION OF THE COURT PADILLA V. KENTUCKY 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-651 JOSE PADILLA, PETITIONER v. KENTUCKY

															on writ of certiorari to the supreme court of
kentucky

															[March 31, 2010]

															   Justice Stevens delivered the
opinion of the Court.

															   Petitioner Jose Padilla, a native
of Honduras, has been a lawful permanent resident of the United
States for more than 40 years. Padilla served this Nation with
honor as a member of the U. S. Armed Forces during the Vietnam War.
He now faces deportation after pleading guilty to the
transportation of a large amount of marijuana in his
tractor-trailer in the Commonwealth of Kentucky.[ Footnote 1 ]

															   In this postconviction proceeding, Padilla
claims that his counsel not only failed to advise him of this
consequence prior to his entering the plea, but also told him that
he “ ‘did not have to worry about immigration status since he
had been in the country so long.’ ” 253 S. W. 3d 482, 483
(Ky. 2008). Padilla relied on his counsel’s erroneous advice when
he pleaded guilty to the drug charges that made his deportation
virtually mandatory. He alleges that he would have insisted on
going to trial if he had not received incorrect advice from his
attorney.

															   Assuming the truth of his allegations, the
Supreme Court of Kentucky denied Padilla postconviction relief
without the benefit of an evidentiary hearing. The court held that
the Sixth Amendment’s guarantee of effective assistance of counsel
does not protect a criminal defendant from erroneous advice about
deportation because it is merely a “collateral” consequence of his
conviction. Id. , at 485. In its view, neither counsel’s
failure to advise petitioner about the possibility of removal, nor
counsel’s incorrect advice, could provide a basis for relief.

															   We granted certiorari, 555 U. S. ___ (2009),
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. Whether he is entitled to relief
depends on whether he has been prejudiced, a matter that we do not
address.

															I

															   The landscape of federal
immigration law has changed dramatically over the last 90 years.
While once there was only a narrow class of deportable offenses and
judges wielded broad discretionary authority to prevent
deportation, immigration reforms over time have expanded the class
of deportable offenses and limited the authority of judges to
alleviate the harsh consequences of deportation. The “drastic
measure” of deportation or removal, Fong Haw Tan v. Phelan , 333
U. S. 6 , 10 (1948), is now virtually inevitable for a vast
number of noncitizens convicted of crimes.

															   The Nation’s first 100 years was
“a period of unimpeded immigration.” C. Gordon & H. Rosenfield,
Immigration Law and Procedure §1.(2)(a), p. 5 (1959). An early
effort to empower the President to order the deportation of those
immigrants he “judge[d] dangerous to the peace and safety of the
United States,” Act of June 25, 1798, ch. 58, 1 Stat. 571, was
short lived and unpopular. Gordon §1.2, at 5. It was not until 1875
that Congress first passed a statute barring convicts and
prostitutes from entering the country, Act of Mar. 3, 1875, ch.
141, 18 Stat. 477. Gordon §1.2b, at 6. In 1891, Congress added to
the list of excludable persons those “who have been convicted of a
felony or other infamous crime or misdemeanor involving moral
turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084.[ Footnote 2 ]

															   The Immigration and Nationality Act of 1917
(1917 Act) brought “radical changes” to our law. S. Rep. No. 1515,
81st Cong., 2d Sess., pp. 54–55 (1950). For the first time in our
history, Congress made classes of noncitizens deportable based on
conduct committed on American soil. Id. , at 55. Section 19
of the 1917 Act authorized the deportation of “any alien who is
hereafter sentenced to imprisonment for a term of one year or more
because of conviction in this country of a crime involving moral
turpitude, committed within five years after the entry of the alien
to the United States … .” 39 Stat. 889. And §19 also rendered
deportable noncitizen recidivists who commit two or more crimes of
moral turpitude at any time after entry. Ibid. Congress
did not, however, define the term “moral turpitude.”

															   While the 1917 Act was “radical” because it
authorized deportation as a consequence of certain convictions, the
Act also included a critically important procedural protection to
minimize the risk of unjust deportation: At the time of sentencing
or within 30 days thereafter, the sentencing judge in both state
and federal prosecutions had the power to make a recommendation
“that such alien shall not be deported.” Id., at
890.[ Footnote 3 ] This
procedure, known as a judicial recommendation against deportation,
or JRAD, had the effect of binding the Executive to prevent
deportation; the statute was “consistently … interpreted as giving
the sentencing judge conclusive authority to decide whether a
particular conviction should be disregarded as a basis for
deportation,” Janvier v. United States , 793
F. 2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was
no such creature as an automatically deportable offense. Even as
the class of deportable offenses expanded, judges retained
discretion to ameliorate unjust results on a case-by-case
basis.

															   Although narcotics offenses—such as the
offense at issue in this case—provided a distinct basis for
deportation as early as 1922,[ Footnote 4 ] the JRAD procedure was generally available to
avoid deportation in narcotics convictions. See United
States v. O’Rourke , 213 F. 2d 759, 762 (CA8
1954). Except for “technical, inadvertent and insignificant
violations of the laws relating to narcotics,” ibid. , it
appears that courts treated narcotics offenses as crimes involving
moral turpitude for purposes of the 1917 Act’s broad JRAD
provision. See ibid. (recognizing that until 1952 a JRAD
in a narcotics case “was effective to prevent deportation” (citing Dang Nam v. Bryan , 74 F. 2d 379,
380–381 (CA9 1934))).

															   In light of both the steady expansion of
deportable offenses and the significant ameliorative effect of a
JRAD, it is unsurprising that, in the wake of Strickland v. Washington , 466 U. S. 668 (1984),
the Second Circuit held that the Sixth Amendment right to effective
assistance of counsel applies to a JRAD request or lack thereof,
see Janvier, 793 F. 2d 449. See also United
States v. Castro , 26 F. 3d 557 (CA5 1994). In
its view, seeking a JRAD was “part of the sentencing” process, Janvier , 793 F. 2d, at 452, even if deportation
itself is a civil action. Under the Second Circuit’s reasoning, the
impact of a conviction on a noncitizen’s ability to remain in the
country was a central issue to be resolved during the sentencing
process—not merely a collateral matter outside the scope of
counsel’s duty to provide effective representation.

															   However, the JRAD procedure is no longer part
of our law. Congress first circumscribed the JRAD provision in the
1952 Immigration and Nationality Act (INA),[ Footnote 5 ] and in 1990 Congress entirely eliminated
it, 104 Stat. 5050. In 1996, Congress also eliminated the Attorney
General’s authority to grant discretionary relief from deportation,
110 Stat. 3009–596, an authority that had been exercised to prevent
the deportation of over 10,000 noncitizens during the 5-year period
prior to 1996, INS v. St. Cyr , 533 U. S. 289 , 296
(2001). Under contemporary law, if a noncitizen has committed a
removable offense after the 1996 effective date of these
amendments, his removal is practically inevitable but for the
possible exercise of limited remnants of equitable discretion
vested in the Attorney General to cancel removal for noncitizens
convicted of particular classes of offenses.[ Footnote 6 ] See 8 U. S. C. §1229b. Subject
to limited exceptions, this discretionary relief is not available
for an offense related to trafficking in a controlled substance.
See §1101(a)(43)(B); §1228.

															   These changes to our immigration law have
dramatically raised the stakes of a noncitizen’s criminal
conviction. The importance of accurate legal advice for noncitizens
accused of crimes has never been more important. These changes
confirm our view that, as a matter of federal law, deportation is
an integral part—indeed, sometimes the most important
part [ Footnote 7 ]—of the
penalty that may be imposed on noncitizen defendants who plead
guilty to specified crimes.

															II

															   Before deciding whether to plead
guilty, a defendant is entitled to “the effective assistance of
competent counsel.” McMann v. Richardson , 397 U. S. 759 ,
771 (1970); Strickland , 466 U. S., at 686. The Supreme
Court of Kentucky rejected Padilla’s ineffectiveness claim on the
ground that the advice he sought about the risk of deportation
concerned only collateral matters, i.e. , those matters not
within the sentencing authority of the state trial court.[ Footnote 8 ] 253 S. W. 3d, at
483–484 (citing Commonwealth v. Fuartado , 170
S. W. 3d 384 (2005)). In its view, “collateral consequences
are outside the scope of representation required by the Sixth
Amendment,” and, therefore, the “failure of defense counsel to
advise the defendant of possible deportation consequences is not
cognizable as a claim for ineffective assistance of counsel.” 253
S. W. 3d, at 483. The Kentucky high court is far from alone in
this view.[ Footnote 9 ]

															   We, however, have never applied a
distinction between direct and collateral consequences to define
the scope of constitutionally “reasonable professional assistance”
required under Strickland , 466 U. S., at 689. Whether that
distinction is appropriate is a question we need not consider in
this case because of the unique nature of deportation.

															   We have long recognized that deportation is a
particularly severe “penalty,” Fong Yue Ting v. United
States , 149 U.
S. 698 , 740 (1893); but it is not, in a strict sense, a
criminal sanction. Although removal proceedings are civil in
nature, see INS v. Lopez-Mendoza , 468 U. S. 1032 , 1038
(1984), deportation is nevertheless intimately related to the
criminal process. Our law has enmeshed criminal convictions and the
penalty of deportation for nearly a century, see Part I, supra , at 2–7. And, importantly, recent changes in our
immigration law have made removal nearly an automatic result for a
broad class of noncitizen offenders. Thus, we find it “most
difficult” to divorce the penalty from the conviction in the
deportation context. United States v. Russell ,
686 F. 2d 35, 38 (CADC 1982). Moreover, we are quite confident
that noncitizen defendants facing a risk of deportation for a
particular offense find it even more difficult. See St.
Cyr , 533 U. S., at 322 (“There can be little doubt that, as a
general matter, alien defendants considering whether to enter into
a plea agreement are acutely aware of the immigration consequences
of their convictions”).

															   Deportation as a consequence of a criminal
conviction is, because of its close connection to the criminal
process, uniquely difficult to classify as either a direct or a
collateral consequence. The collateral versus direct distinction is
thus ill-suited to evaluating a Strickland claim
concerning the specific risk of deportation. We conclude that
advice regarding deportation is not categorically removed from the
ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

															III

															   Under Strickland , we
first determine whether counsel’s representation “fell below an
objective standard of reasonableness.” 466 U. S., at 688. Then we
ask whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. , at 694. The first
prong—constitu-tional deficiency—is necessarily linked to the
practice and expectations of the legal community: “The proper
measure of attorney performance remains simply reasonableness under
prevailing professional norms.” Id. , at 688. We long have
recognized that “[p]revailing norms of practice as reflected in
American Bar Association standards and the like … are guides to
determining what is reasonable … .” Ibid.; Bobby v. Van Hook , 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 3); Florida v. Nixon , 543
U. S. 175 , 191, and n. 6 (2004); Wiggins v. Smith, 539
U. S. 510 , 524 (2003); Williams v. Taylor , 529 U. S. 362 ,
396 (2000). Although they are “only guides,” Strickland ,
466 U. S., at 688, and not “inexorable commands,” Bobby ,
558 U. S., at ___ (slip op., at 5), these standards may be valuable
measures of the prevailing professional norms of effective
representation, especially as these standards have been adapted to
deal with the intersection of modern criminal prosecutions and
immigration law.

															   The weight of prevailing professional norms
supports the view that counsel must advise her client regarding the
risk of deportation. National Legal Aid and Defender Assn.,
Performance Guidelines for Criminal Representation §6.2 (1995); G.
Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin &
Holmes, Effective Assistance of Counsel and the Consequences of
Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A.
Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004);
Dept. of Justice, Office of Justice Programs, 2 Compendium of
Standards for Indigent Defense Systems, Standards for Attorney
Performance, pp. D10, H8–H9, J8 (2000) (providing survey of
guidelines across multiple jurisdictions); ABA Standards for
Criminal Justice, Prosecution Function and Defense Function
4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice,
Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999). “[A]uthorities of
every stripe—including the American Bar Association, criminal
defense and public defender organizations, authoritative treatises,
and state and city bar publications—universally require defense
attorneys to advise as to the risk of deportation consequences for
non-citizen clients … .” Brief for Legal Ethics, Criminal
Procedure, and Criminal Law Professors as Amici Curiae 12–14 (footnotes omitted) (citing, inter
alia , National Legal Aid and Defender Assn., Guidelines, supra, §§6.2–6.4 (1997); S. Bratton & E.
Kelley, Practice Points: Representing a Noncitizen in a Criminal
Case, 31 The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal
Defense of Immigrants §1.3 (3d ed. 2003); 2 Criminal Practice
Manual §§45:3, 45:15 (2009)). We too have previously recognized
that “ ‘[p]reserving the client’s right to remain in the
United States may be more important to the client than any
potential jail sentence.’ ” St. Cyr , 533 U. S., at
323 (quoting 3 Criminal Defense Techniques §§60A.01, 60A.02[2]
(1999)). Likewise, we have recognized that “preserving the
possibility of” discretionary relief from deportation under §212(c)
of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would
have been one of the principal benefits sought by defendants
deciding whether to accept a plea offer or instead to proceed to
trial.” St. Cyr , 533 U. S., at 323. We expected that
counsel who were unaware of the discretionary relief measures would
“follo[w] the advice of numerous practice guides” to advise
themselves of the importance of this particular form of
discretionary relief. Ibid., n. 50. In the instant case, the terms of
the relevant immigration statute are succinct, clear, and explicit
in defining the removal consequence for Padilla’s conviction. See 8
U. S. C. §1227(a)(2)(B)(i) (“Any alien who at any time after
admission has been convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State, the United
States or a foreign country relating to a controlled
substance … , other than a single offense involving
possession for one’s own use of 30 grams or less of marijuana, is
deportable”). Padilla’s counsel could have easily determined that
his plea would make him eligible for deportation simply from
reading the text of the statute, which addresses not some broad
classification of crimes but specifically commands removal for all
controlled substances convictions except for the most trivial of
marijuana possession offenses. Instead, Padilla’s counsel provided
him false assurance that his conviction would not result in his
removal from this country. This is not a hard case in which to find
deficiency: The consequences of Padilla’s plea could easily be
determined from reading the removal statute, his deportation was
presumptively mandatory, and his counsel’s advice was
incorrect. Immigration law can be complex,
and it is a legal specialty of its own. Some members of the bar who
represent clients facing criminal charges, in either state or
federal court or both, may not be well versed in it. There will,
therefore, undoubtedly be numerous situations in which the
deportation consequences of a particular plea are unclear or
uncertain. The duty of the private practitioner in such cases is
more limited. When the law is not succinct and straightforward (as
it is in many of the scenarios posited by Justice Alito), a
criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse
immigration consequences.[ Footnote 10 ] But when the deportation consequence is
truly clear, as it was in this case, the duty to give correct
advice is equally clear. Accepting his allegations as true,
Padilla has sufficiently alleged constitutional deficiency to
satisfy the first prong of Strickland . Whether Padilla is
entitled to relief on his claim will depend on whether he can
satisfy Strickland ’s second prong, prejudice, a matter we
leave to the Kentucky courts to consider in the first
instance. IV The Solicitor General
has urged us to conclude that Strickland applies to
Padilla’s claim only to the extent that he has alleged affirmative
misadvice. In the United States’ view, “counsel is not
constitutionally required to provide advice on matters that will
not be decided in the criminal case … ,” though counsel is required
to provide accurate advice if she chooses to discusses these
matters. Brief for United States as Amicus Curiae 10. Respondent and Padilla both find
the Solicitor General’s proposed rule unpersuasive, although it has
support among the lower courts. See, e.g. , United
States v. Couto , 311 F. 3d 179, 188 (CA2 2002); United States v. Kwan , 407 F. 3d 1005 (CA9
2005); Sparks v. Sowders , 852 F. 2d 882 (CA6
1988); United States v. Russell , 686 F. 2d
35 (CADC 1982); State v. Rojas-Martinez , 2005 UT
86, 125 P. 3d 930, 935; In re Resendiz , 25 Cal.
4th 230, 19 P. 3d 1171 (2001). Kentucky describes these
decisions isolating an affirmative misadvice claim as
“result-driven, incestuous … [,and] completely lacking in legal or
rational bases.” Brief for Respondent 31. We do not share that
view, but we agree that there is no relevant difference “between an
act of commission and an act of omission” in this context. Id. , at 30; Strickland , 466 U. S., at 690 (“The
court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance”); see also State v. Paredez , 2004–NMSC–036, 136 N. M.
533, 538–539. A holding limited to affirmative
misadvice would invite two absurd results. First, it would give
counsel an incentive to remain silent on matters of great
importance, even when answers are readily available. Silence under
these circumstances would be fundamentally at odds with the
critical obligation of counsel to advise the client of “the
advantages and disadvantages of a plea agreement.” Libretti v. United States , 516 U. S. 29 , 50–51
(1995). When attorneys know that their clients face possible exile
from this country and separation from their families, they should
not be encouraged to say nothing at all.[ Footnote 11 ] Second, it would deny a class of clients
least able to represent themselves the most rudimentary advice on
deportation even when it is readily available. It is
quintessentially the duty of counsel to provide her client with
available advice about an issue like deportation and the failure to
do so “clearly satisfies the first prong of the Strickland analysis.” Hill v. Lockhart , 474 U. S. 52 , 62 (1985)
(White, J., concurring in judgment). We have given serious
consideration to the concerns that the Solicitor General,
respondent, and amici have stressed regarding the
importance of protecting the finality of convictions obtained
through guilty pleas. We confronted a similar “floodgates” concern
in Hill , see id., at 58, but nevertheless applied Strickland to a claim that counsel had failed to advise
the client regarding his parole eligibility before he pleaded
guilty.[ Footnote
12 ] A flood did not follow in that
decision’s wake. Surmounting Strickland ’s high bar is
never an easy task. See, e.g. , 466 U. S., at 689
(“Judicial scrutiny of counsel’s performance must be highly
deferential”); id. , at 693 (observing that “[a]ttorney
errors … are as likely to be utterly harmless in a particular case
as they are to be prejudicial”). Moreover, to obtain relief on this
type of claim, a petitioner must convince the court that a decision
to reject the plea bargain would have been rational under the
circumstances. See Roe v. Flores-Ortega , 528 U. S. 470 , 480, 486
(2000). There is no reason to doubt that lower courts—now quite
experienced with applying Strickland —can effectively and
efficiently use its framework to separate specious claims from
those with substantial merit. It seems unlikely that our
decision today will have a significant effect on those convictions
already obtained as the result of plea bargains. For at least the
past 15 years, professional norms have generally imposed an
obligation on counsel to provide advice on the deportation
consequences of a client’s plea. See, supra , at 11–13. We
should, therefore, presume that counsel satisfied their obligation
to render competent advice at the time their clients considered
pleading guilty. Strickland , 466 U. S., at 689. Likewise, although we must be
especially careful about recognizing new grounds for attacking the
validity of guilty pleas, in the 25 years since we first applied Strickland to claims of ineffective assistance at the plea
stage, practice has shown that pleas are less frequently the
subject of collateral challenges than convictions obtained after a
trial. Pleas account for nearly 95% of all criminal
convictions.[ Footnote 13 ]
But they account for only approximately 30% of the habeas petitions
filed.[ Footnote 14 ] The
nature of relief secured by a successful collateral challenge to a
guilty plea—an opportunity to withdraw the plea and proceed to
trial—imposes its own significant limiting principle: Those who
collaterally attack their guilty pleas lose the benefit of the
bargain obtained as a result of the plea. Thus, a different
calculus informs whether it is wise to challenge a guilty plea in a
habeas proceeding because, ultimately, the challenge may result in
a less favorable outcome for the defendant, whereas a
collateral challenge to a conviction obtained after a jury trial
has no similar downside potential. Finally, informed consideration of
possible deportation can only benefit both the State and noncitizen
defendants during the plea-bargaining process. By bringing
deportation consequences into this process, the defense and
prosecution may well be able to reach agreements that better
satisfy the interests of both parties. As in this case, a criminal
episode may provide the basis for multiple charges, of which only a
subset mandate deportation following conviction. Counsel who
possess the most rudimentary understanding of the deportation
consequences of a particular criminal offense may be able to plea
bargain creatively with the prosecutor in order to craft a
conviction and sentence that reduce the likelihood of deportation,
as by avoiding a conviction for an offense that automatically
triggers the removal consequence. At the same time, the threat of
deportation may provide the defendant with a powerful incentive to
plead guilty to an offense that does not mandate that penalty in
exchange for a dismissal of a charge that does. In sum, we have long recognized
that the negotiation of a plea bargain is a critical phase of
litigation for purposes of the Sixth Amendment right to effective
assistance of counsel. Hill , 474 U. S., at 57; see also Richardson , 397 U. S., at 770–771. The severity of
deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael , 332 U. S. 388 , 390–391 (1947)—only
underscores how critical it is for counsel to inform her noncitizen
client that he faces a risk of deportation.[ Footnote 15 ] V It is our
responsibility under the Constitution to ensure that no criminal
defendant—whether a citizen or not—is left to the “mercies of
incompetent counsel.” Richardson , 397 U. S., at 771. To
satisfy this responsibility, we now hold that counsel must inform
her client whether his plea carries a risk of deportation. Our
longstanding Sixth Amendment precedents, the seriousness of
deportation as a consequence of a criminal plea, and the
concomitant impact of deportation on families living lawfully in
this country demand no less. 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. See Verizon Communications
Inc. v. FCC , 535 U. S. 467 , 530
(2002). The judgment of the Supreme Court
of Kentucky is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Padilla’s crime, like virtually
every drug offense except for only the most insignificant marijuana
offenses, is a deportable offense under 8 U. S. C.
§1227(a)(2)(B)(i). Footnote 2 In 1907, Congress expanded the
class of excluded persons to include individuals who “admit” to
having committed a crime of moral turpitude. Act of Feb. 20, 1907,
ch. 1134, 34 Stat. 899. Footnote 3 As enacted, the statute
provided: “That the provision of this section respecting the
deportation of aliens convicted of a crime involving moral
turpitude shall not apply to one who has been pardoned, nor shall
such deportation be made or directed if the court, or judge
thereof, sentencing such alien for such crime shall, at the time of
imposing judgment or passing sentence or within thirty days
thereafter, … make a recommendation to the Secretary of Labor that
such alien shall not be deported in pursuance of this Act.” 1917
Act, 39 Stat. 889–890. This provision was codified in 8 U. S. C.
§1251(b) (1994 ed.) (transferred to §1227 (2006 ed. )). The judge’s
nondeportation recommendation was binding on the Secretary of Labor
and, later, the Attorney General after control of immigration
removal matters was transferred from the former to the latter. See Janvier v. United States , 793 F. 2d 449, 452
(CA2 1986). Footnote 4 Congress first identified
narcotics offenses as a special category of crimes triggering
deportation in the 1922 Narcotic Drug Act. Act of May 26, 1922, ch.
202, 42 Stat. 596. After the 1922 Act took effect, there was some
initial confusion over whether a narcotics offense also had to be a
crime of moral turpitude for an individual to be deportable. See Weedin v. Moy Fat , 8 F. 2d 488, 489 (CA9
1925) (holding that an individual who committed narcotics offense
was not deportable because offense did not involve moral
turpitude). However, lower courts eventually agreed that the
narcotics offense provision was “special,” Chung Que Fong v. Nagle , 15 F. 2d 789, 790 (CA9 1926); thus, a
narcotics offense did not need also to be a crime of moral
turpitude (or to satisfy other requirements of the 1917 Act) to
trigger deportation. See United States ex rel. Grimaldi v. Ebey , 12 F. 2d 922, 923 (CA7 1926); Todaro v. Munster , 62 F. 2d 963, 964 (CA10 1933). Footnote 5 The Act separately codified the
moral turpitude offense provision and the narcotics offense
provision within 8 U. S. C. §1251(a) (1994 ed.) under
subsections (a)(4) and (a)(11), respectively. See 66 Stat. 201,
204, 206. The JRAD procedure, codified in 8 U. S. C. §1251(b)
(1994 ed.), applied only to the “provisions of subsection (a)(4),”
the crimes-of-moral-turpitude provision. 66 Stat. 208; see United States v. O’Rourke , 213 F. 2d 759,
762 (CA8 1954) (recognizing that, under the 1952 Act, narcotics
offenses were no longer eligible for JRADs). Footnote 6 The changes to our immigration
law have also involved a change in nomenclature; the statutory text
now uses the term “removal” rather than “deportation.” See Calcano-Martinez v. INS , 533 U. S. 348 , 350,
n. 1 (2001). Footnote 7 See Brief for Asian American
Justice Center et al. as Amici Curiae 12–27
(providing real-world examples). Footnote 8 There is some disagreement among
the courts over how to distinguish between direct and collateral
consequences. See Roberts, Ignorance is Effectively Bliss:
Collateral Consequences, Silence, and Misinformation in the
Guilty-Plea Process, 95 Iowa L. Rev. 119, 124, n. 15
(2009). The disagreement over how to apply the direct/collateral
distinction has no bearing on the disposition of this case because,
as even Justice Alito agrees, counsel must, at the very least,
advise a noncitizen “defendant that a criminal conviction may have
adverse immigration consequences,” post , at 1 (opinion
concurring in judgment). See also post , at 14 (“I do not
mean to suggest that the Sixth Amendment does no more than require
defense counsel to avoid misinformation”). In his concurring
opinion, Justice Alito has thus departed from the strict rule
applied by the Supreme Court of Kentucky and in the two federal
cases that he cites, post , at 2. Footnote 9 See, e.g. , United
States v. Gonzalez , 202 F. 3d 20 (CA1 2000); United States v. Del Rosario , 902 F. 2d 55
(CADC 1990); United States v. Yearwood , 863
F. 2d 6 (CA4 1988); Santos-Sanchez v. United
States , 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft , 358 F. 3d 1251 (CA10 2004); United
States v. Campbell , 778 F. 2d 764 (CA11 1985); Oyekoya v. State , 558 So. 2d 990 (Ala. Ct.
Crim. App. 1989); State v. Rosas , 183 Ariz. 421,
904 P. 2d 1245 (App. 1995); State v. Montalban , 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa , 520 Pa. 552, 555
A. 2d 92 (1989). Footnote
10 As Justice Alito explains at
length, deportation consequences are often unclear. Lack of clarity
in the law, however, does not obviate the need for counsel to say
something about the possibility of deportation, even though it will
affect the scope and nature of counsel’s advice. Footnote
11 As the Commonwealth conceded at
oral argument, were a defendant’s lawyer to know that a particular
offense would result in the client’s deportation and that, upon
deportation, the client and his family might well be killed due to
circumstances in the client’s home country, any decent attorney
would inform the client of the consequences of his plea. Tr. of
Oral Arg. 37–38. We think the same result should follow when the
stakes are not life and death but merely “banishment or exile,” Delgadillo v. Carmichael , 332 U. S. 388 , 390–391
(1947). Footnote
12 However, we concluded that, even
though Strickland applied to petitioner’s claim, he had
not sufficiently alleged prejudice to satisfy Strickland ’s
second prong. Hill , 474 U. S., at 59–60. This disposition
further underscores the fact that it is often quite difficult for
petitioners who have acknowledged their guilt to satisfy Strickland ’s prejudice prong. Justice Alito believes that the
Court misreads Hill , post , at 10–11. In Hill , the Court recognized—for the first time—that Strickland applies to advice respecting a guilty plea. 474
U. S., at 58 (“We hold, therefore, that the two-part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of
counsel”). It is true that Hill does not control the
question before us. But its import is nevertheless clear. Whether Strickland applies to Padilla’s claim follows from Hill , regardless of the fact that the Hill Court
did not resolve the particular question respecting misadvice that
was before it. Footnote
13 See Dept. of Justice, Bureau of
Justice Statistics, Sourcebook of Criminal Justice Statistics 2003,
p. 418 (31st ed. 2005) (Table 5.17) (only approximately 5%, or
8,612 out of 68,533, of federal criminal prosecutions go to trial); id. , at 450 (Table 5.46) (only approximately 5% of all
state felony criminal prosecutions go to trial). Footnote
14 See V. Flango, National Center
for State Courts, Habeas Corpus in State and Federal Courts 36–38
(1994) (demonstrating that 5% of defendants whose conviction was
the result of a trial account for approximately 70% of the habeas
petitions filed). Footnote
15 To this end, we
find it significant that the plea form currently used in Kentucky
courts provides notice of possible immigration consequences. Ky.
Admin. Office of Courts, Motion to Enter Guilty Plea, Form AOC–491
(Rev. 2/2003), http://courts.ky.gov/NR/rdonlyres/
55E1F54E-ED5C-4A30-B1D5-4C43C7ADD63C/0/491.pdf (as visited Mar. 29,
2010, and available in Clerk of Court’s case file). Further, many
States require trial courts to advise defendants of possible
immigration consequences. See, e.g. , Alaska Rule Crim.
Proc. 11(c)(3)(C) (2009–2010); Cal. Penal Code Ann. §1016.5 (West
2008); Conn. Gen. Stat. §54–1j (2009); D. C. Code §16–713 (2001);
Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga. Code Ann.
§17–7–93(c) (1997); Haw. Rev. Stat. Ann. §802E–2 (2007); Iowa Rule
Crim. Proc. 2.8(2) (b) (3) (Supp. 2009); Md. Rule 4–242
(Lexis 2009); Mass. Gen. Laws, ch. 278, §29D (2009); Minn. Rule
Crim. Proc. 15.01 (2009); Mont. Code Ann. §46–12–210 (2009); N. M.
Rule Crim. Form 9–406 (2009); N. Y. Crim. Proc. Law Ann. §220.50(7)
(West Supp. 2009); N. C. Gen. Stat. Ann. §15A–1022 (Lexis 2007);
Ohio Rev. Code Ann. §2943.031 (West 2006); Ore. Rev. Stat. §135.385
(2007); R. I. Gen. Laws §12–12–22 (Lexis Supp. 2008); Tex. Code.
Ann. Crim. Proc., Art. 26.13(a)(4) (Vernon Supp. 2009); Vt. Stat.
Ann., Tit. 13, §6565(c)(1) (Supp. 2009); Wash. Rev. Code §10.40.200
(2008); Wis. Stat. §971.08 (2005–2006). ALITO, J., CONCURRING IN JUDGMENT PADILLA V. KENTUCKY 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-651 JOSE PADILLA, PETITIONER v. KENTUCKY

															on writ of certiorari to the supreme court of
kentucky

															[March 31, 2010]

															   Justice Alito, with whom The
Chief Justice joins, concurring in the judgment.

															   I concur in the judgment because
a criminal defense attorney fails to provide effective assistance
within the meaning of Strickland v. Washington , 466 U. S. 668 (1984), if the attorney misleads a noncitizen client regarding the
removal consequences of a conviction. In my view, such an attorney
must (1) refrain from unreasonably providing incorrect advice and
(2) advise the defendant that a criminal conviction may have
adverse immigration consequences and that, if the alien wants
advice on this issue, the alien should consult an immigration
attorney. I do not agree with the Court that the attorney must
attempt to explain what those consequences may be. As the Court
concedes, “[i]mmigration law can be complex”; “it is a legal
specialty of its own”; and “[s]ome members of the bar who represent
clients facing criminal charges, in either state or federal court
or both, may not be well versed in it.” Ante , at 11. The
Court nevertheless holds that a criminal defense attorney must
provide advice in this specialized area in those cases in which the
law is “succinct and straightforward”—but not, perhaps, in other
situations. Ante , at 11–12. This vague, halfway test will
lead to much confusion and needless litigation.

															I

															   Under Strickland , an
attorney provides ineffective assistance if the attorney’s
representation does not meet reasonable professional standards. 466
U. S., at 688. Until today, the longstanding and unanimous position
of the federal courts was that reasonable defense counsel generally
need only advise a client about the direct consequences of
a criminal conviction. See, e.g. , United States v . Gonzalez , 202 F. 3d 20, 28 (CA1 2000)
(ineffective-assistance-of-counsel claim fails if “based on an
attorney’s failure to advise a client of his plea’s immigration
consequences”); United States v. Banda , 1 F. 3d
354, 355 (CA5 1993) (holding that “an attorney’s failure to advise
a client that deportation is a possible consequence of a guilty
plea does not constitute ineffective assistance of counsel”); see
generally Chin & Holmes, Effective Assistance of Counsel and
the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699
(2002) (hereinafter Chin & Holmes) (noting that “virtually all
jurisdictions”—including “eleven federal circuits, more than thirty
states, and the District of Columbia”—“hold that defense counsel
need not discuss with their clients the collateral consequences of
a conviction,” including deportation). While the line between
“direct” and “collateral” consequences is not always clear, see ante, at 7, n. 8, the collateral-consequences rule
expresses an important truth: Criminal defense attorneys have
expertise regarding the conduct of criminal proceedings. They are
not expected to possess—and very often do not possess—expertise in
other areas of the law, and it is unrealistic to expect them to
provide expert advice on matters that lie outside their area of
training and experience.

															   This case happens to involve
removal, but criminal convictions can carry a wide variety of
consequences other than conviction and sentencing, including civil
commitment, civil forfeiture, the loss of the right to vote,
disqualification from public benefits, ineligibility to possess
firearms, dishonorable discharge from the Armed Forces, and loss of
business or professional licenses. Chin & Holmes 705–706. A
criminal conviction may also severely damage a defendant’s
reputation and thus impair the defendant’s ability to obtain future
employment or business opportunities. All of those consequences are
“seriou[s],” see ante , at 17, but this Court has never
held that a criminal defense attorney’s Sixth Amendment duties
extend to providing advice about such matters.

															   The Court tries to justify its dramatic
departure from precedent by pointing to the views of various
professional organizations. See ante , at 9 (“The weight of
prevailing professional norms supports the view that counsel must
advise her client regarding the risk of deportation”). However,
ascertaining the level of professional competence required by the
Sixth Amendment is ultimately a task for the courts. E.g. , Roe v. Flores-Ortega , 528 U. S. 470 , 477
(2000). Although we may appropriately consult standards promulgated
by private bar groups, we cannot delegate to these groups our task
of determining what the Constitution commands. See Strickland , supra, at 688 (explaining that
“[p]revailing norms of practice as reflected in American Bar
Association standards … are guides to determining what is
reasonable, but they are only guides”). And we must recognize that
such standards may represent only the aspirations of a bar group
rather than an empirical assessment of actual practice.

															   Even if the only relevant consideration were
“prevailing professional norms,” it is hard to see how those norms
can support the duty the Court today imposes on defense counsel.
Because many criminal defense attorneys have little understanding
of immigration law, see ante , at 11, it should follow that
a criminal defense attorney who refrains from providing immigration
advice does not violate prevailing professional norms. But the
Court’s opinion would not just require defense counsel to warn the
client of a general risk of removal; it would also require
counsel in at least some cases, to specify what the removal consequences of a conviction would be. See ante ,
at 11–12 . The Court’s new approach is particularly
problematic because providing advice on whether a conviction for a
particular offense will make an alien removable is often quite
complex. “Most crimes affecting immigration status are not
specifically mentioned by the [Immigration and Nationality Act
(INA)], but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated
felonies .” M. Garcia & L. Eig, CRS Report for Congress,
Immigration Consequences of Criminal Activity (Sept. 20, 2006)
(summary) (emphasis in original). As has been widely acknowledged,
determining whether a particular crime is an “aggravated felony” or
a “crime involving moral turpitude [(CIMT)]” is not an easy task.
See R. McWhirter, ABA, The Criminal Lawyer’s Guide to Immigration
Law: Questions and Answers 128 (2d ed. 2006) (hereinafter ABA
Guidebook) (“Because of the increased complexity of aggravated
felony law, this edition devotes a new [30-page] chapter to the
subject”); id ., §5.2, at 146 (stating that the aggravated
felony list at 8 U. S. C. §1101(a)(43) is not clear with
respect to several of the listed categories, that “the term
‘aggravated felonies’ can include misdemeanors,” and that the
determination of whether a crime is an “aggravated felony” is made
“even more difficult” because “several agencies and courts
interpret the statute,” including Immigration and Customs
Enforcement, the Board of Immigration Appeals (BIA), and Federal
Circuit and district courts considering immigration-law and
criminal-law issues); ABA Guidebook §4.65, at 130 (“Because nothing
is ever simple with immigration law, the terms ‘conviction,’ ‘moral
turpitude,’ and ‘single scheme of criminal misconduct’ are terms of
art”); id., §4.67, at 130 (“[T]he term ‘moral turpitude’
evades precise definition”).

															   Defense counsel who consults a guidebook on
whether a particular crime is an “aggravated felony” will often
find that the answer is not ‘‘easily ascertained.” For example, the
ABA Guidebook answers the question “Does simple possession count as
an aggravated felony?” as follows: “Yes, at least in the Ninth
Circuit .” §5.35, at 160 (emphasis added). After a dizzying
paragraph that attempts to explain the evolution of the Ninth
Circuit’s view, the ABA Guidebook continues: “Adding to the
confusion, however, is that the Ninth Circuit has conflicting
opinions depending on the context on whether simple drug possession
constitutes an aggravated felony under 8 U. S. C.
§1101(a)(43).” Id. , §5.35, at 161 (citing cases
distinguishing between whether a simple possession offense is an
aggravated felony “for immigration purposes” or for “sentencing
purposes”). The ABA Guidebook then proceeds to explain that
“ attempted possession,” id., §5.36, at 161
(emphasis added), of a controlled substance is an
aggravated felony, while “[c]onviction under the federal accessory after the fact statute is probably not an aggravated felony, but a conviction for accessory
after the fact to the manufacture of methamphetamine is an
aggravated felony,” id. , §537, at 161 (emphasis added).
Conspiracy or attempt to commit drug trafficking are aggravated
felonies, but “[s]olicitation is not a drug-trafficking offense
because a generic solicitation offense is not an offense related to
a controlled substance and therefore not an aggravated felony.” Id. , §5.41, at 162.

															   Determining whether a particular crime is one
involving moral turpitude is no easier. See id ., at 134
(“Writing bad checks may or may not be a CIMT” (emphasis
added)); ibid . (“[R]eckless assault coupled with an
element of injury, but not serious injury, is probably not
a CIMT” (emphasis added)); id ., at 135 (misdemeanor
driving under the influence is generally not a CIMT, but may be a
CIMT if the DUI results in injury or if the driver knew that his
license had been suspended or revoked); id ., at 136 (“If
there is no element of actual injury, the endangerment offense may not be a CIMT” (emphasis added)); ibid .
(“Whether [a child abuse] conviction involves moral turpitude may depend on the subsection under which the individual is
convicted. Child abuse done with criminal negligence probably is not a CIMT” (emphasis added)).

															   Many other terms of the INA are similarly
ambiguous or may be confusing to practitioners not versed in the
intricacies of immigration law. To take just a few examples, it may
be hard, in some cases, for defense counsel even to determine
whether a client is an alien,[ Footnote 1 ] or whether a particular state disposition will
result in a “conviction” for purposes of federal immigration
law.[ Footnote 2 ] The task of
offering advice about the immigration consequences of a criminal
conviction is further complicated by other problems, including
significant variations among Circuit interpretations of federal
immigration statutes; the frequency with which immigration law
changes; different rules governing the immigration consequences of
juvenile, first-offender, and foreign convictions; and the
relationship between the “length and type of sentence” and the
determination “whether [an alien] is subject to removal, eligible
for relief from removal, or qualified to become a naturalized
citizen,” Immigration Law and Crimes §2:1, at 2–2 to 2–3.

															   In short, the professional organizations and
guidebooks on which the Court so heavily relies are right to say
that “nothing is ever simple with immigration law”—including the
determination whether immigration law clearly makes a particular
offense removable. ABA Guidebook §4.65, at 130; Immigration Law and
Crimes §2:1. I therefore cannot agree with the Court’s apparent
view that the Sixth Amendment requires criminal defense attorneys
to provide immigration advice.

															   The Court tries to downplay the severity of
the burden it imposes on defense counsel by suggesting that the
scope of counsel’s duty to offer advice concerning deportation
consequences may turn on how hard it is to determine those
consequences. Where “the terms of the relevant immigration statute
are succinct, clear, and explicit in defining the removal
consequence[s]” of a conviction, the Court says, counsel has an
affirmative duty to advise the client that he will be subject to
deportation as a result of the plea. Ante , at 11. But
“[w]hen the law is not succinct and straightforward … , a
criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse
immigration consequences.” Ante , at 11–12. This approach
is problematic for at least four reasons.

															   First, it will not always be easy to tell
whether a particular statutory provision is “succinct, clear, and
explicit.” How can an attorney who lacks general immigration law
expertise be sure that a seemingly clear statutory provision
actually means what it seems to say when read in isolation? What if
the application of the provision to a particular case is not clear
but a cursory examination of case law or administrative decisions
would provide a definitive answer? See Immigration Law and Crimes
§2:1, at 2–2 (“Unfortunately, a practitioner or respondent cannot
tell easily whether a conviction is for a removable offense… .
[T]he cautious practitioner or apprehensive respondent will not
know conclusively the future immigration consequences of a guilty
plea”).

															   Second, if defense counsel must provide advice
regarding only one of the many collateral consequences of a
criminal conviction, many defendants are likely to be misled. To
take just one example, a conviction for a particular offense may
render an alien excludable but not removable. If an alien charged
with such an offense is advised only that pleading guilty to such
an offense will not result in removal, the alien may be induced to
enter a guilty plea without realizing that a consequence of the
plea is that the alien will be unable to reenter the United States
if the alien returns to his or her home country for any reason,
such as to visit an elderly parent or to attend a funeral. See ABA
Guidebook §4.14, at 111 (“Often the alien is both excludable and removable . At times, however, the
lists are different. Thus, the oddity of an alien that is
inadmissible but not deportable. This alien should not leave the
United States because the government will not let him back in”
(emphasis in original)). Incomplete legal advice may be worse than
no advice at all because it may mislead and may dissuade the client
from seeking advice from a more knowledgeable source.

															   Third, the Court’s rigid constitutional rule
could inadvertently head off more promising ways of addressing the
underlying problem—such as statutory or administrative reforms
requiring trial judges to inform a defendant on the record that a
guilty plea may carry adverse immigration consequences. As amici point out, “28 states and the District of Columbia
have already adopted rules, plea forms, or statutes
requiring courts to advise criminal defendants of the possible
immigration consequences of their pleas.” Brief for State of
Louisiana et al. 25; accord, Chin & Holmes 708 (“A growing
number of states require advice about deportation by statute or
court rule”). A nonconstitutional rule requiring trial judges to
inform defendants on the record of the risk of adverse immigration
consequences can ensure that a defendant receives needed
information without putting a large number of criminal convictions
at risk; and because such a warning would be given on the record,
courts would not later have to determine whether the defendant was
misrepresenting the advice of counsel. Likewise, flexible statutory
procedures for withdrawing guilty pleas might give courts
appropriate discretion to determine whether the interests of
justice would be served by allowing a particular defendant to
withdraw a plea entered into on the basis of incomplete
information. Cf. United States v. Russell , 686
F. 2d 35, 39–40 (CADC 1982) (explaining that a district
court’s discretion to set aside a guilty plea under the Federal
Rules of Criminal Procedure should be guided by, among other
considerations, “the possible existence of prejudice to the
government’s case as a result of the defendant’s untimely request
to stand trial” and “the strength of the defendant’s reason for
withdrawing the plea, including whether the defendant asserts his
innocence of the charge”).

															   Fourth, the Court’s decision marks a major
upheaval in Sixth Amendment law. This Court decided Strickland in 1984, but the majority does not cite a
single case, from this or any other federal court, holding that
criminal defense counsel’s failure to provide advice concerning the
removal consequences of a criminal conviction violates a
defendant’s Sixth Amendment right to counsel. As noted above, the
Court’s view has been rejected by every Federal Court of Appeals to
have considered the issue thus far. See, e.g. , Gonzalez , 202 F. 3d, at 28; Banda , 1
F. 3d, at 355; Chin & Holmes 697, 699. The majority
appropriately acknowledges that the lower courts are “now quite
experienced with applying Strickland ,” ante , at
14, but it casually dismisses the longstanding and unanimous
position of the lower federal courts with respect to the scope of
criminal defense counsel’s duty to advise on collateral
consequences.

															   The majority seeks to downplay its dramatic
expansion of the scope of criminal defense counsel’s duties under
the Sixth Amendment by claiming that this Court in Hill v. Lockhart , 474 U. S. 52 (1985),
similarly “applied Strickland to a claim that counsel had
failed to advise the client regarding his parole eligibility before
he pleaded guilty.” Ante , at 14. That characterization of Hill obscures much more than it reveals. The issue in Hill was whether a criminal defendant’s Sixth Amendment
right to counsel was violated where counsel misinformed the client
about his eligibility for parole. The Court found it “unnecessary
to determine whether there may be circumstances under which
erroneous advice by counsel as to parole eligibility may be deemed
constitutionally ineffective assistance of counsel, because in the
present case we conclude that petitioner’s allegations are
insufficient to satisfy the Strickland v. Washington requirement of ‘prejudice.’ ” 474 U. S.,
at 60. Given that Hill expressly and unambiguously refused
to decide whether criminal defense counsel must avoid
misinforming his or her client as to one consequence
of a criminal conviction (parole eligibility), that case plainly
provides no support whatsoever for the proposition that counsel
must affirmatively advise his or her client as to another collateral consequence (removal). By the Court’s
strange logic, Hill would support its decision here even
if the Court had held that misadvice concerning parole eligibility
does not make counsel’s performance objectively
unreasonable. After all, the Court still would have “applied Strickland ” to the facts of the case at hand.

															II

															   While mastery of immigration law
is not required by Strickland , several considerations
support the conclusion that affirmative misadvice regarding the
removal consequences of a conviction may constitute ineffective
assistance.

															   First, a rule prohibiting
affirmative misadvice regarding a matter as crucial to the
defendant’s plea decision as deportation appears faithful to the
scope and nature of the Sixth Amendment duty this Court has
recognized in its past cases. In particular, we have explained that
“a guilty plea cannot be attacked as based on inadequate legal
advice unless counsel was not ‘a reasonably competent attorney’ and
the advice was not ‘within the range of competence demanded of
attorneys in criminal cases .’ ” Strickland ,
466 U. S., at 687 (quoting McMann v. Richardson , 397 U. S. 759 ,
770, 771 (1970); emphasis added). As the Court appears to
acknowledge, thorough understanding of the intricacies of
immigration law is not “within the range of competence demanded of
attorneys in criminal cases .” See ante , at 11
(“Immigration law can be complex, and it is a legal specialty of
its own. Some members of the bar who represent clients facing
criminal charges, in either state or federal court or both, may not
be well versed in it”). By contrast, reasonably competent attorneys
should know that it is not appropriate or responsible to hold
themselves out as authorities on a difficult and complicated
subject matter with which they are not familiar. Candor concerning
the limits of one’s professional expertise, in other words, is
within the range of duties reasonably expected of defense attorneys
in criminal cases. As the dissenting judge on the Kentucky Supreme
Court put it, “I do not believe it is too much of a burden to place
on our defense bar the duty to say, ‘I do not know.’ ” 253
S. W. 3d 482, 485 (2008).

															   Second, incompetent advice distorts the
defendant’s decisionmaking process and seems to call the fairness
and integrity of the criminal proceeding itself into question. See Strickland , 466 U. S., at 686 (“In giving meaning to the
requirement [of effective assistance of counsel], we must take its
purpose—to ensure a fair trial—as the guide”). When a defendant
opts to plead guilty without definitive information concerning the
likely effects of the plea, the defendant can fairly be said to
assume the risk that the conviction may carry indirect consequences
of which he or she is not aware. That is not the case when a
defendant bases the decision to plead guilty on counsel’s express
misrepresentation that the defendant will not be removable. In the
latter case, it seems hard to say that the plea was entered with
the advice of constitutionally competent counsel—or that it
embodies a voluntary and intelligent decision to forsake
constitutional rights. See ibid. (“The benchmark for
judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result”).

															   Third, a rule prohibiting unreasonable
misadvice regarding exceptionally important collateral matters
would not deter or interfere with ongoing political and
administrative efforts to devise fair and reasonable solutions to
the difficult problem posed by defendants who plead guilty without
knowing of certain important collateral consequences.

															   Finally, the conclusion that affirmative
misadvice regarding the removal consequences of a conviction can
give rise to ineffective assistance would, unlike the Court’s
approach, not require any upheaval in the law. As the Solicitor
General points out, “[t]he vast majority of the lower courts
considering claims of ineffective assistance in the plea context
have [distinguished] between defense counsel who remain silent and
defense counsel who give affirmative misadvice.” Brief for United
States as Amicus Curiae 8 (citing cases). At
least three Courts of Appeals have held that affirmative misadvice
on immigration matters can give rise to ineffective assistance of
counsel, at least in some circumstances.[ Footnote 3 ] And several other Circuits have held that
affirmative misadvice concerning nonimmigration consequences of a
conviction can violate the Sixth Amendment even if those
consequences might be deemed “collateral.”[ Footnote 4 ] By contrast, it appears that no court of
appeals holds that affirmative misadvice concerning collateral
consequences in general and removal in particular can never give rise to ineffective assistance. In short, the
considered and thus far unanimous view of the lower federal courts
charged with administering Strickland clearly supports the
conclusion that that Kentucky Supreme Court’s position goes too
far.

															   In concluding that affirmative misadvice
regarding the removal consequences of a criminal conviction may
constitute ineffective assistance, I do not mean to suggest that
the Sixth Amendment does no more than require defense counsel to
avoid misinformation. When a criminal defense attorney is aware
that a client is an alien, the attorney should advise the client
that a criminal conviction may have adverse consequences under the
immigration laws and that the client should consult an immigration
specialist if the client wants advice on that subject. By putting
the client on notice of the danger of removal, such advice would
significantly reduce the chance that the client would plead guilty
under a mistaken premise.

															III

															   In sum, a criminal defense
attorney should not be required to provide advice on immigration
law, a complex specialty that generally lies outside the scope of a
criminal defense attorney’s expertise. On the other hand, any
competent criminal defense attorney should appreciate the
extraordinary importance that the risk of removal might have in the
client’s determination whether to enter a guilty plea. Accordingly,
unreasonable and incorrect information concerning the risk of
removal can give rise to an ineffectiveness claim. In addition,
silence alone is not enough to satisfy counsel’s duty to assist the
client. Instead, an alien defendant’s Sixth Amendment right to
counsel is satisfied if defense counsel advises the client that a
conviction may have immigration consequences, that immigration law
is a specialized field, that the attorney is not an immigration
lawyer, and that the client should consult an immigration
specialist if the client wants advice on that subject. Footnote 1 Citizens are not deportable, but “[q]uestions
of citizenship are not always simple.” ABA Guidebook §4.20, at 113
(explaining that U.S. citizenship conferred by blood is
“ ‘derivative,’ ” and that “[d]erivative citizenship
depends on a number of confusing factors, including whether the
citizen parent was the mother or father, the immigration laws in
effect at the time of the parents’ and/or defendant’s birth, and
the parents’ marital status”). Footnote 2 “A disposition that is not a ‘conviction,’
under state law may still be a ‘conviction’ for immigration
purposes.” Id., §4.32, at 117 (citing Matter of
Salazar , 23 I. & N. Dec. 223, 231 (BIA 2002) (en
banc)). For example, state law may define the term “conviction” not
to include a deferred adjudication, but such an adjudication would
be deemed a conviction for purposes of federal immigration law. See
ABA Guidebook §4.37; accord, D. Kesselbrenner & L. Rosenberg,
Immigration Law and Crimes §2:1, p. 2–2 (2008) (hereinafter
Immigration Law and Crimes) (“A practitioner or respondent will not
even know whether the Department of Homeland Security (DHS) or the
Executive Office for Immigration Review (EOIR) will treat a
particular state disposition as a conviction for immigration
purposes. In fact, the [BIA] treats certain state criminal
dispositions as convictions even though the state treats the same
disposition as a dismissal”). Footnote 3 See United States v. Kwan ,
407 F. 3d 1005, 1015–1017 (CA9 2005); United States v. Couto , 311 F. 3d 179, 188 (CA2 2002); Downs-Morgan v. United States , 765 F. 2d 1534,
1540–1541 (CA11 1985) (limiting holding to the facts of the case);
see also Santos-Sanchez v. United Stat es, 548 F.
3d 327, 333–334 (CA5 2008) (concluding that counsel’s advice was
not objectively unreasonable where counsel did not purport to
answer questions about immigration law, did not claim any expertise
in immigration law, and simply warned of “possible” deportation
consequence; use of the word “possible” was not an affirmative
misrepresentation, even though it could indicate that deportation
was not a certain consequence). Footnote 4 See Hill v. Lockhart , 894
F. 2d 1009, 1010 (CA8 1990) (en banc) (“[T]he erroneous
parole-eligibility advice given to Mr. Hill was ineffective
assistance of counsel under Strickland v. Washington ”); Sparks v . Sowders , 852 F. 2d 882, 885 (CA6 1988)
(“[G]ross misadvice concerning parole eligibility can amount to
ineffective assistance of counsel”); id., at 886 (Kennedy,
J., concurring) (“When the maximum possible exposure is overstated,
the defendant might well be influenced to accept a plea agreement
he would otherwise reject”); Strader v. Garrison ,
611 F. 2d 61, 65 (CA4 1979) (“[T]hough parole eligibility
dates are collateral consequences of the entry of a guilty plea of
which a defendant need not be informed if he does not inquire, when
he is grossly misinformed about it by his lawyer, and relies upon
that misinformation, he is deprived of his constitutional right to
counsel”). SCALIA, J., DISSENTING PADILLA V. KENTUCKY 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-651 JOSE PADILLA, PETITIONER v. KENTUCKY

															on writ of certiorari to the supreme court of
kentucky

															[March 31, 2010]

															   Justice Scalia, with whom Justice
Thomas joins, dissenting.

															   In the best of all possible
worlds, criminal defendants contemplating a guilty plea ought to be
advised of all serious collateral consequences of conviction, and
surely ought not to be misadvised. The Constitution, however, is
not an all-purpose tool for judicial construction of a perfect
world; and when we ignore its text in order to make it that, we
often find ourselves swinging a sledge where a tack hammer is
needed.

															   The Sixth Amendment guarantees the accused a
lawyer “for his defense” against a “criminal prosecutio[n]”—not for
sound advice about the collateral consequences of conviction. For
that reason, and for the practical reasons set forth in Part I of
Justice Alito’s concurrence, I dissent from the Court’s conclusion
that the Sixth Amendment requires counsel to provide accurate
advice concerning the potential removal consequences of a guilty
plea. For the same reasons, but unlike the concurrence, I do not
believe that affirmative misadvice about those consequences renders
an attorney’s assistance in defending against the prosecution
constitutionally inadequate; or that the Sixth Amendment requires
counsel to warn immigrant defendants that a conviction may render
them removable. Statutory provisions can remedy these concerns in a
more targeted fashion, and without producing permanent, and
legislatively irreparable, overkill.

															*  *  *

															   The Sixth Amendment as originally
understood and ratified meant only that a defendant had a right to
employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee , 140 U. S. 169 , 173
(1891); W. Beaney, Right to Counsel in American Courts 21, 28–29
(1955). We have held, however, that the Sixth Amendment requires
the provision of counsel to indigent defendants at government
expense, Gideon v. Wainwright , 372 U. S. 335 , 344–345
(1963), and that the right to “the assistance of counsel” includes
the right to effective assistance, Strickland v. Washington , 466 U. S. 668 , 686
(1984). Even assuming the validity of these holdings, I reject the
significant further extension that the Court, and to a lesser
extent the concurrence, would create. We have until today at least
retained the Sixth Amendment’s textual limitation to criminal
prosecutions. “[W]e have held that ‘defence’ means defense at
trial, not defense in relation to other objectives that may be
important to the accused.” Rothgery v. Gillespie
County, 554 U. S. ___, ___ (2008) (Alito, J., concurring)
(slip op., at 4) (summarizing cases). We have limited the Sixth
Amendment to legal advice directly related to defense against
prosecution of the charged offense—advice at trial, of course, but
also advice at postindictment interrogations and lineups, Massiah v. United States , 377 U. S. 201 , 205–206
(1964); United States v. Wade , 388 U. S. 218 , 236–238
(1967), and in general advice at all phases of the prosecution
where the defendant would be at a disadvantage when pitted alone
against the legally trained agents of the state, see Moran v. Burbine , 475 U. S. 412 , 430
(1986). Not only have we not required advice of counsel regarding
consequences collateral to prosecution, we have not even required
counsel appointed to defend against one prosecution to be present
when the defendant is interrogated in connection with another
possible prosecution arising from the same event. Texas v. Cobb , 532
U. S. 162 , 164 (2001).

															   There is no basis in text or in
principle to extend the constitutionally required advice regarding
guilty pleas beyond those matters germane to the criminal
prosecution at hand—to wit, the sentence that the plea will
produce, the higher sentence that conviction after trial might
entail, and the chances of such a conviction. Such matters fall
within “the range of competence demanded of attorneys in criminal
cases,” McMann v. Richardson , 397 U. S. 759 , 771
(1970). See id., at 769–770 (describing the matters
counsel and client must consider in connection with a contemplated
guilty plea). We have never held, as the logic of the Court’s
opinion assumes, that once counsel is appointed all professional
responsibilities of counsel—even those extending beyond defense
against the prosecution—become constitutional commands. Cf. Cobb , supra , at 171, n. 2; Moran , supra , at 430. Because the subject of the misadvice here
was not the prosecution for which Jose Padilla was entitled to
effective assistance of counsel, the Sixth Amendment has no
application.

															   Adding to counsel’s duties an obligation to
advise about a conviction’s collateral consequences has no logical
stopping-point. As the concurrence observes,

															“[A] criminal convictio[n] can carry a wide variety
of consequences other than conviction and sentencing, including
civil commitment, civil forfeiture, the loss of the right to vote,
disqualification from public benefits, ineligibility to possess
firearms, dishonorable discharge from the Armed Forces, and loss of
business or professional licenses. . . . All of those consequences
are ‘serious,’ … .” Ante , at 2–3 (Alito, J.,
concurring in judgment).

															But it seems to me that the concurrence suffers
from the same defect. The same indeterminacy, the same inability to
know what areas of advice are relevant, attaches to misadvice. And
the concurrence’s suggestion that counsel must warn defendants of
potential removal consequences, see ante , at 14–15—what
would come to be known as the “ Padilla warning”—cannot be
limited to those consequences except by judicial caprice. It is
difficult to believe that the warning requirement would not be
extended, for example, to the risk of heightened sentences in later
federal prosecutions pursuant to the Armed Career Criminal Act, 18
U. S. C. §924(e). We could expect years of elaboration upon
these new issues in the lower courts, prompted by the defense bar’s
devising of ever-expanding categories of plea-invalidating
misadvice and failures to warn—not to mention innumerable
evidentiary hearings to determine whether misadvice really occurred
or whether the warning was really given.

															   The concurrence’s treatment of misadvice seems
driven by concern about the voluntariness of Padilla’s guilty plea.
See ante , at 12. But that concern properly relates to the
Due Process Clauses of the Fifth and Fourteenth Amendments, not to
the Sixth Amendment. See McCarthy v. United
States , 394 U.
S. 459 , 466 (1969); Brady v. United States , 397 U. S. 742 ,
748 (1970). Padilla has not argued before us that his guilty plea
was not knowing and voluntary. If that is, however, the true
substance of his claim (and if he has properly preserved it) the
state court can address it on remand.[ Footnote 1 ] But we should not smuggle the claim into the
Sixth Amendment.

															   The Court’s holding prevents legislation that
could solve the problems addressed by today’s opinions in a more
precise and targeted fashion. If the subject had not been
constitutionalized, legislation could specify which categories of
misadvice about matters ancillary to the prosecution invalidate
plea agreements, what collateral consequences counsel must bring to
a defendant’s attention, and what warnings must be given.[ Footnote 2 ] Moreover, legislation could
provide consequences for the misadvice, nonadvice, or failure to
warn, other than nullification of a criminal conviction after the
witnesses and evidence needed for retrial have disappeared. Federal
immigration law might provide, for example, that the near-automatic
removal which follows from certain criminal convictions will not
apply where the conviction rested upon a guilty plea induced by
counsel’s misadvice regarding removal consequences. Or legislation
might put the government to a choice in such circumstances: Either
retry the defendant or forgo the removal. But all that has been
precluded in favor of today’s sledge hammer.

															   In sum, the Sixth Amendment guarantees
adequate assistance of counsel in defending against a pending
criminal prosecution. We should limit both the constitutional
obligation to provide advice and the consequences of bad advice to
that well defined area. Footnote 1 I do not mean to suggest that the Due Process
Clause would surely provide relief. We have indicated that
awareness of “direct consequences” suffices for the validity of a
guilty plea. See Brady , 397 U. S., at 755 (internal
quotation marks omitted). And the required colloquy between a
federal district court and a defendant required by Federal Rule of
Criminal Procedure 11(b) (formerly Rule 11(c)), which we have said
approximates the due process requirements for a valid plea, see Libretti v. United States , 516 U. S. 29 , 49–50
(1995), does not mention collateral consequences. Whatever the
outcome, however, the effect of misadvice regarding such
consequences upon the validity of a guilty plea should be analyzed
under the Due Process Clause. Footnote 2 As the Court’s opinion notes, ante, at 16–17, n. 15, many States—including Kentucky—already
require that criminal defendants be warned of potential removal
consequences.