Actually, Padilla Does Apply to Undocumented Defendants (Daniel A. Horwitz, Harvard Latino Law Review, Vol. 19., Spring 2016.)

Padilla does apply to undocumented defendants. For the reasons provided in this Article, the reasoning of those authorities that have reached a contrary conclusion suffers from four fatal flaws.

This Article proceeds in six parts. Part I summarizes the authorities that have concluded that Padilla does not apply to undocumented defendants. Part II explains why this conclusion neglects the legal and practical reality that a guilty plea frequently increases the risk of deportation for the undocumented. Part III expounds upon this concern by observing that regardless of the fact that there are myriad situations in which a guilty plea can cause an undocumented defendant to be deported who otherwise would not have been, the test for prejudice under Padilla is not whether a non-citizen defendant would have been deported anyway; instead, the applicable test is whether “a decision to reject the plea bargain would have been rational under the circumstances.” Part IV adds that the contention that Padilla does not protect undocumented defendants undermines the underlying purpose of the right to effective assistance of counsel itself: to prevent inaccurate convictions. Part V observes that Padilla held without equivocation that: “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.”’14 Because this holding expressly includes undocumented defendants, Part V contends, lower courts lack the authority to ignore it. In closing, Part VI concludes that future courts should reject the prevailing view that Padilla does not apply to undocumented defendants and should  hold instead that undocumented defendants’ Padilla claims must be carefully reviewed for prejudice on a case-by-case basis.