The Padilla case overrules U.S. v. Gonzalez, 202 F.3d 20, 25 (1st Cir. 2000). This First Circuit decision held that immigration consequences were collateral to a criminal conviction and, therefore, a guilty plea could not be withdrawn due to failure to warn the defendant about immigration consequences of his plea. See Padilla, 2010 U.S. LEXIS at*16, n. 9.

Padilla also overrules Commonwealth v. Fraire, 55 Mass. App. Ct. 916 (2002), and Commonwealth v. Monteiro, 56 Mass. App. Ct. 913 (2002), which rejected motions to vacate based on counsels failure to advise of the immigration consequences of the pleas. These cases applied the Sixth Amendment to claims of ineffective assistance of counsel, as analyzed by Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and found that immigration consequences were collateral; thus, counsel did not have a duty to advise the defendants of such consequences.

Padilla also impacts the questioning by judges during plea colloquies. Since counsel is now constitutionally mandated to advise clients of immigration consequences prior to pleading guilty, judges should ask defendants during plea colloquies whether counsel adequately explained the immigration consequences of pleading guilty.

Thanks to the Immigration Impact Unit, Mass. State Public Defender