What Criminal Defense Attorneys Owe Non-Citizen Clients Before the Plea

On March 17, 2026, the United States Court of Appeals for the Tenth Circuit decided United States v. Aguayo-Montes, No. 24-4073.  It is worth reading carefully if you represent non-citizen clients in criminal proceedings.

Cesar Aguayo had lived in Colorado since age two.  He was a DACA recipient.  He had graduated high school with honors, attended college, worked for a municipal parks department, and owned a home.  When he was arrested on a federal drug charge, the first thing he told his retained attorney was that he was worried about deportation — and that remaining in the United States was his most important concern.

His attorney’s response, when Aguayo raised the immigration provision in the plea agreement and asked what it meant: he could not tell Aguayo what would happen.  Aguayo did not need to worry about it until he got to prison.  Once there, he could contact an immigration lawyer.

Aguayo pleaded guilty to possessing heroin with intent to distribute under 21 U.S.C. § 841(a)(1).  He was sentenced to 37 months.  And he learned, post-plea, what his attorney should have told him from the beginning: a federal controlled-substance conviction carries automatic, presumptively mandatory deportation consequences under 8 U.S.C. § 1227(a)(2)(B)(i).  There was nothing uncertain about it.

The Tenth Circuit reversed the district court’s denial of Aguayo’s § 2255 motion.  Writing for the court, Judge Moritz held that when the immigration consequences of a conviction are "truly clear," the attorney’s duty to give correct advice is "equally clear."  Telling a client he "may" be deported when deportation is practically inevitable is constitutionally insufficient.  And telling a client not to worry about immigration consequences until after sentencing is affirmative misadvice that denies him effective representation at the only stage where it matters: plea negotiations.

I am not writing this to criticize the attorney in Aguayo-Montes.  I practiced criminal defense as an Army Judge Advocate, and I know how these cases move — the caseload pressure, the plea deadlines, the client who has competing priorities pulling in different directions.  Immigration law is, as the Supreme Court recognized in Padilla v. Kentucky, a "complex legal specialty of its own."  Most criminal defense practitioners are not immigration lawyers.  The analytical framework — matching the statute of conviction against the INA’s deportability and inadmissibility grounds, applying the categorical approach, determining whether a conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43) — is not intuitive from a criminal law background.  Getting it wrong is easy.  The consequences for the client can be permanent.

Adding an immigration analysis to every plea negotiation involving a non-citizen client can feel like an additional burden on an already constrained process.  But that is precisely why accessible, timely expert consultation matters.  The immigration analysis does not need to take weeks.  For most controlled-substance and drug-trafficking charges, the deportability question is answerable quickly — and the answer changes how the entire plea strategy is framed.

This is not a federal court issue or a Tenth Circuit issue.  Padilla applies to state criminal proceedings as well.  The same duty attaches when a non-citizen client is facing a state drug charge, a state theft offense, or any other state conviction that may qualify as a deportable or inadmissibility-triggering offense under the INA.

The solution is straightforward.  Before advising a non-citizen client on a plea, call an immigration attorney.  Not after sentencing.  Before.

Emeriti Law PLLC advises criminal defense counsel on the immigration consequences of federal and state criminal charges, including deportability analysis, aggravated-felony classification, and plea-bargaining strategy to reduce immigration exposure.  We are available for consultation at the pre-plea stage.