Advice Re: Immigration Consequences is a Constitutional Right
I don't normally include Supreme Court decisions, but this one affects so many of our clients, past and present, that it must be mentioned.
In Padilla v. Kentucky, available at http://www.supremecourt.gov/opinions/09pdf/08-651.pdf, released today, the Supreme Court held that counsel must inform a client whether his plea carries a risk of deportation. Failure to do so can be ineffective assistance of counsel within the meaning of the Sixth Amendment.
The court said that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. Because the serious consequence of deportation or removal is now virtually inevitable for many noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
The court acknowledged that there are situations where the deportation consequences of a plea will be unclear, and in such situations a criminal defense attorney need only advise the noncitizen client that there may be adverse immigration consequences. But when the deportation consequence is truly clear, as it was in Mr. Padilla's case, the duty to give correct advice is clear. The court left for another day whether Mr. Padilla was prejudiced.
This case may be the basis for potential habeas relief for previously convicted clients and also for arguments at sentencing, based on the decision's strong language about removal being "an integral part" of the penalty faced by noncitizen clients.
In Padilla v. Kentucky, available at http://www.supremecourt.gov/opinions/09pdf/08-651.pdf, released today, the Supreme Court held that counsel must inform a client whether his plea carries a risk of deportation. Failure to do so can be ineffective assistance of counsel within the meaning of the Sixth Amendment.
The court said that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. Because the serious consequence of deportation or removal is now virtually inevitable for many noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
The court acknowledged that there are situations where the deportation consequences of a plea will be unclear, and in such situations a criminal defense attorney need only advise the noncitizen client that there may be adverse immigration consequences. But when the deportation consequence is truly clear, as it was in Mr. Padilla's case, the duty to give correct advice is clear. The court left for another day whether Mr. Padilla was prejudiced.
This case may be the basis for potential habeas relief for previously convicted clients and also for arguments at sentencing, based on the decision's strong language about removal being "an integral part" of the penalty faced by noncitizen clients.
posted by Anonymous at 9:39 AM
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