In Padilla v. Kentucky, the Supreme Court recognized the complexity and severity of immigration penalties triggered by criminal convictions and held that defense attorneys are obligated to advise clients of such consequences. In so doing, the Court explained that specific advice is required when a consequence is clear; at the same time, it acknowledged it is not alwys possible to ascertain the consequences of a criminal disposition and, when that is the case, counsel’s duty is more limited. The Court did not, however, elaborate on the circumstances in which the duty might be limited or explain what advice defense counsel owes a non-citizen defendant even under that limited duty. As post-Padilla practice has demonstrated, a more developed understanding of the extent of the duty to advise non-citizen defendants is now essential.

This Article explains how the Padilla opinion provides direction on the scope of a defense attorney’s duty vis-à-vis non-citizen clients and argues that reading the “clear consequence” comment in light of the decision’s roots and rationale offers the necessary guidance. After parsing the Court’s statements, this Article looks at the concrete questions about attorneys' duties that have arisen in lower courts in Padilla’s wake. This inquiry shows that, where Padilla is interpreted narrowly, it seriously undermines non-citizen defendants’ Sixth Amendment rights. This Article then places the “clear consequence” discussion in context by considering the Padilla opinion as a whole and concludes by proposing an analytical approach that accounts for the directives that run throughout the opinion. Ultimately, understanding the basis of the decision and the practical problems that result from a narrow interpretation make clear that defense attorneys must advise non-citizen clients as specifically as research allows in order to adequately inform them about the immigration consequences of contemplated criminal dispositions.