According to a cert petition that SCOTUSblog has named a “petition of the week,” courts are split on this issue. See the question presented below. This petition is pending (not granted). We’ll keep you posted on its status.
In Padilla v. Kentucky, 559 U.S. 356 (2010) and Lee v. United States, 137 S. Ct. 1958 (2017), this Court held that lawful permanent residents that received deficient advice regarding immigration-law consequences of a plea can assert claims under Strickland v. Washington, 466 U.S. 668 (1984). Although this Court has not yet addressed how these precedents apply to unlawfully present aliens, the lower courts are deeply divided as to how they do.
Respondent, an unauthorized alien, asserted a Padilla/Lee claim. It is undisputed that he had no substantive right to remain in the United States, and was thus subject to deportation at any time. Respondent also submitted no evidence whatsoever that he had a viable defense either against the criminal charges or deportation if he were acquitted. The Arizona Supreme Court nevertheless extended Padilla and Lee to unauthorized aliens and held that Respondent had established prejudice under Strickland.
The questions presented are:
1. Whether Respondent is categorically barred from establishing Strickland prejudice for a Padilla/Lee claim because, as an unauthorized alien, he is without any legal right to remain in the United States.
2. Whether the Arizona Supreme Court erred in finding Strickland prejudice, where inter alia there was no evidence that Respondent had a viable defense either to the criminal charges or deportation.