Supreme Court: Lawyers Must Advise Immigrants of Deportation Threat

By Richey, Warren | The Christian Science Monitor, March 31, 2010 | Go to article overview

Supreme Court: Lawyers Must Advise Immigrants of Deportation Threat


Richey, Warren, The Christian Science Monitor


The US Supreme Court said that criminal defense lawyers are bound by the Constitution to let immigrant defendants who are not US citizens know when a guilty plea could lead to deportation.

Criminal defense lawyers have a constitutional obligation to inform immigrant criminal defendants who are not US citizens of the possibility that a guilty plea could result in deportation.

In a 7-to-2 decision announced on Wednesday, the US Supreme Court expanded the Sixth Amendment right to effective assistance of competent legal counsel to include a defendant's right to receive accurate advice about the immigration consequences of a possible guilty plea.

"We now hold that counsel must inform her client whether his plea carries a risk of deportation," wrote Justice John Paul Stevens in the majority opinion.

In a dissent, Justices Antonin Scalia and Clarence Thomas said a lawyer's constitutional obligation relates to representing a client in a criminal matter and should not extend to collateral issues such as possible deportation and immigration law.

"There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand," Justice Scalia wrote.

Case began with drug charges

The issue arose in the case of Jose Padilla, who had been charged with transporting a large amount of marijuana in his tractor- trailer in Kentucky. Padilla, a native of Honduras, has been a lawful permanent resident of the US for more than 40 years and served in the US armed forces during the Vietnam War.

After his arrest on the drug charge, his lawyer entered negotiations with prosecutors for a plea agreement. The lawyer advised Mr. Padilla that he didn't have to worry about his immigration status since he'd been in the US for so long.

The lawyer was wrong. Under US immigration law a drug conviction triggers mandatory deportation. At sentencing, Padilla was ordered deported.

Padilla appealed, seeking to throw out his guilty plea. He argued that his lawyer's failure to advise him of the deportation consequences of his guilty plea amounted to ineffective assistance of counsel.

Defendant appealed state court loss

The Supreme Court of Kentucky denied his appeal. The Kentucky high court said the Sixth Amendment required effective advice about the criminal charges against Padilla, not the potential immigration consequences of a plea agreement or conviction.

In reversing the Kentucky court, the majority justices said changes in US immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. Deportation can sometimes be the most important part of the penalty faced by noncitizens who plead guilty.

"The importance of accurate legal advice for noncitizens accused of crimes has never been more important," Stevens wrote. …

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