Your right to immigration advice before a plea
Since 2010, your criminal defense lawyer has had a constitutional duty to tell you what a guilty plea will do to your immigration status before you enter it. Saying nothing is a violation. Saying the plea will not matter when it will is a violation. The warning the judge reads from the bench in New York or Florida does not replace that advice. This page explains what the right covers, where it stops, and how to make sure the advice you get is specific and in writing.
Current as of October 2026. We re-check this page regularly and after any rule change.
The right is simple to state. Before you plead guilty, your defense lawyer must tell you what the plea does to your immigration status. It is the sixth of the moving parts on the plea strategy page, and it is the one that makes the other five enforceable: a lawyer who knows the consequences can negotiate around them, and a plea entered without that knowledge can sometimes be undone. This page is about the right itself, what the court's own warning does and does not add, and how to turn the advice into a document.
If you are the defense attorney, this page is for you.
What Padilla requires
In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment right to effective counsel includes advice about the immigration consequences of a guilty plea. A defense lawyer who says nothing about immigration to a noncitizen client has performed deficiently. A defense lawyer who says the plea will not affect immigration status, when it will, has performed deficiently. Silence and misadvice are both violations. The case is about the criminal lawyer, not the immigration lawyer, and it is about the plea, not the sentence hearing or the trial.
Two later decisions set the edges. Chaidez v. United States, 568 U.S. 342 (2013), held that Padilla announced a new rule and does not reach back: it applies only to convictions that were not yet final on March 31, 2010. Lee v. United States, 582 U.S. 357 (2017), addressed the second half of every ineffective-assistance claim, prejudice. The government argued that a defendant with no real chance at trial could not have been harmed by bad advice about a plea. The Court disagreed. Where deportation was the determinative issue for the defendant, he could show that he would have rejected the plea and taken his chances at trial, even with little chance of acquittal, and that is enough.
The date that decides whether Padilla applies
A conviction that became final before March 31, 2010 is outside Padilla under Chaidez. A conviction final on or after that date is inside it. "Final" is a question about the criminal case and its appeal, and it is the first thing a post-conviction lawyer will check. If your plea is older than that, the vacating a plea page explains what other grounds exist.
What the advice has to cover is not spelled out in a list, and we will not invent one. What it has to be is correct. A plea that is a controlled-substance offense, an aggravated felony or a crime of domestic violence has consequences that can be read from the statute and the case law on the crimes and removal pages, and the advice has to match them.
The warning from the bench in New York and Florida
New York and Florida, two of the states where our attorneys are admitted, require the court itself to say something about immigration before it accepts a plea. Those warnings matter, but they are not the same thing as Padilla advice, and it is important to know which one you are hearing.
| Court | What the court must say | When | Authority |
|---|---|---|---|
| New York | That a defendant who is not a citizen may be removed as a result of the plea | Before accepting a plea to a felony | N.Y. CPL 220.50(7); People v. Peque, 22 N.Y.3d 168 (2013) |
| Florida | That if the defendant is not a citizen the plea may subject them to deportation | Before accepting a plea | Fla. R. Crim. P. 3.172(c)(8) |
The New York rule, as the statute and the Court of Appeals stated it, is about felony pleas. Whether a New York court owes the same warning on a misdemeanor plea, and what happens when the warning is omitted, are questions that depend on the procedural posture, and we have not verified a rule general enough to give you without seeing your case. Ask us about those, and about any advisal in a New Jersey court. The New York, New Jersey and Florida pages cover each state's procedure.
Why the court's warning is not a substitute
The court says the plea may result in removal. It says that to every noncitizen, for every plea, whether the plea is a violation with no immigration consequence or an aggravated felony that closes every form of relief. It cannot tell you which one you are looking at, because the judge has not read the charge against the immigration statute and is not your lawyer. Padilla puts the duty on the person who is: your defense counsel, who knows your status, your history, the count on offer and the sentence that comes with it. A general warning from the bench and a specific analysis from your lawyer are different things. You are entitled to the second. Take the first as a signal to ask for it.
What to ask your lawyer, in writing
The advice is only useful if it is specific to the plea on the table, and it is only provable if it is written down. Before you plead, ask your criminal lawyer to answer these questions and to put the answers in a letter or an email to you.
- Is the disposition a conviction under the immigration definition? A plea plus probation is, even with no judgment. A dismissal with no plea is not. The conviction page has the test.
- Which grounds does the offense fit? A crime involving moral turpitude, an aggravated felony, a controlled-substance offense, a firearms offense, a crime of domestic violence. Not what the state calls it. What the elements are.
- What will the sentence be, including any suspended part? A year and 364 days are different answers. Six months and seven months are different answers. The 364-day page explains why.
- What will the record say? The count, the subsection, the factual basis, the loss amount, the name of the substance, the relationship to the complainant. The record of conviction page lists what the immigration judge may read.
- What does this close? Cancellation, adjustment, a waiver, naturalization, travel. The answer depends on your status, and the status pages go through each one.
- What is the alternative? A different count, a different sentence, a different disposition, a different factual basis. The immigration-safer pleas page lists the requests by category.
If the answer is "ask an immigration lawyer"
That is a reasonable thing for a criminal lawyer to say, and it is exactly what we are for. But the referral does not end the criminal lawyer's duty; it is the start of the two lawyers working from one file. Ask your criminal lawyer to hold the plea date until the immigration analysis is in writing, and bring us the charging document, the plea offer and your immigration history the same day.
How our written plea memo documents the advice
When we review a plea for a noncitizen client, the product is a memo addressed to the client and to defense counsel. It identifies the client's status and the date of admission, if any. It reads the charged offense and the offered plea against each ground of removal and each bar to relief, with the authority for each conclusion. It states what the sentence threshold is for that category and what sentence to ask for. It says what the factual basis should and should not contain. And it says, in one paragraph at the top, what the offered plea does and what the alternative plea would do instead.
That memo does two jobs. Before the plea, it is the advice: the defense lawyer can hand it to the prosecutor as the reason for the request, and the client can read it in their own language before the court date. After the plea, it is the record of what was advised. If the advice was followed, the file shows that the plea was informed. If the plea was entered on advice that turns out to have been wrong, the file shows that too, and a vacatur on that ground is a vacatur for a constitutional defect in the proceeding, which is what Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), requires before the immigration court will treat the conviction as gone.
If you never got the advice
Then the motion goes to the criminal court that took the plea. In New York the motion is made under CPL 440.10, which has no fixed filing deadline. In Florida it is Rule 3.850, generally within two years after the judgment and sentence become final. In New Jersey it is a petition under Rule 3:22, generally within five years of the judgment. In federal court a person still in custody moves under 28 U.S.C. 2255 within one year, and a person no longer in custody may seek a writ of coram nobis. Each of these has exceptions and each has to be planned with the immigration case, because a removal proceeding will not wait. The vacating a plea page and the after a plea section cover that work.
The firm's criminal defense practice, which handles the plea and the post-conviction motion where our attorneys are admitted, working from the same file as the immigration lawyers.
The full firm at usherlegal.com →
immigrationtrial.comWhat a Padilla vacatur does once the removal case has started: motions to terminate, continuances while the criminal motion is pending, and reopening after an order.
Post-conviction relief in removal proceedings →
Common questions
My lawyer never mentioned immigration. Is that a violation?
Yes. Under Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must advise a noncitizen client of the immigration consequences of a plea, and silence is deficient performance under the Sixth Amendment, the same as wrong advice. Whether the plea can be undone is a second question: you also have to show prejudice, and under Lee v. United States that means showing you would have rejected the plea had you known.
Does Padilla apply to a plea I took years ago?
Only if the conviction became final on or after March 31, 2010. In Chaidez v. United States, 568 U.S. 342 (2013), the Supreme Court held that Padilla announced a new rule and does not apply retroactively to convictions that were already final on that date. For an older plea, the claim has to rest on something other than Padilla, and that is a conversation for a post-conviction lawyer, not this page.
The judge warned me the plea could lead to deportation. Does that cancel my lawyer's mistake?
The two are different things. In New York, the court must warn a noncitizen before accepting a felony plea that the plea may result in removal, and in Florida the rule of criminal procedure requires a similar warning before any plea. Those are general warnings from the bench. Padilla puts the duty to advise on your own lawyer. Whether a warning from the court affects a Padilla claim in a particular case is decided by the court that hears the motion. Ask us about yours.
I probably would have lost at trial. Can I still show I was prejudiced?
Possibly. In Lee v. United States, 582 U.S. 357 (2017), the defendant had almost no defense, but the Supreme Court held he could still show prejudice because deportation was the determinative issue for him, and a rational person in his position could have chosen a trial with a small chance of acquittal over a plea that made removal certain. The strength of the evidence matters, but it is not the end of the inquiry.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.