Right to Counsel for Noncitizens Charged with Committing a Crime
The United States Supreme Court recently decided regarding the right to counsel for noncitizens charged with committing a crime. Before accepting a guilty plea, the Court held that criminal defense lawyers have an obligation to advise their clients who are noncitizens about the risk of deportation. The harshness of current immigration laws and mandatory deportation consequences resulting from certain criminal convictions was acknowledged by the Court. Over the last 90 years, federal immigration law has changed drastically, changing what was once a narrow class of deportable offenses and broad discretionary authority by judges to prevent deportation, to an expansive class of deportable offenses, and limited authority of judges to alleviate the harsh consequences of deportation. More than ever, the importance of accurate legal advice for noncitizens facing criminal convictions is of dire magnitude, since the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes. Therefore, as a matter of federal law, for defendants who plead guilty to specified crimes, deportation is an integral part of the penalty that may be imposed.
Decided just yesterday, the case Padilla v. Kentucky, 559 U. S. ____ (2010), concerned a Mr. Padilla, a lawful permanent resident, native of Honduras who has been in the United States for more than 40 years. Mr. Padilla, a Vietnam War veteran, who honorably served the U.S. Armed forces, faced deportation after pleading guilty to the transportation of a large amount of marijuana. Mr. Padilla claimed that his criminal defense lawyer not only failed to advise him of deportation consequences, he also told him not to worry about his immigration status “since he had been in the country for so long. This advice was erroneous. When he pleaded guilty to the drug charges, Mr. Padilla was subject to mandatory deportation from the United States. He alleged that he would have insisted on going to trial if he had not received incorrect advice from his attorney. The Court’s decision reversed the Kentucky court, which held that Mr. Padilla could not withdraw his plea when he learned about the deportation consequence. In addition, the position of the federal government that a noncitizen is not protected from a lawyer’s failure to provide any advice about the immigration consequences of a plea was rejected, moving away from the view that only “affirmative misadvice” by counsel will be sufficient protection for the noncitizen against ineffective assistance of counsel. Attorneys at the American Immigration Council’s Legal Action Center applauded the decision by the United States Supreme Court, and urged Congress to acknowledge the importance of right to counsel together with the inflexibility and rising criminalization of immigration law, and restore the discretion judges once had to consider particular circumstances in a person’s case, which would therefore afford a fair opportunity to be heard to those individuals facing deportation.
SOURCES:
Decided just yesterday, the case Padilla v. Kentucky, 559 U. S. ____ (2010), concerned a Mr. Padilla, a lawful permanent resident, native of Honduras who has been in the United States for more than 40 years. Mr. Padilla, a Vietnam War veteran, who honorably served the U.S. Armed forces, faced deportation after pleading guilty to the transportation of a large amount of marijuana. Mr. Padilla claimed that his criminal defense lawyer not only failed to advise him of deportation consequences, he also told him not to worry about his immigration status “since he had been in the country for so long. This advice was erroneous. When he pleaded guilty to the drug charges, Mr. Padilla was subject to mandatory deportation from the United States. He alleged that he would have insisted on going to trial if he had not received incorrect advice from his attorney. The Court’s decision reversed the Kentucky court, which held that Mr. Padilla could not withdraw his plea when he learned about the deportation consequence. In addition, the position of the federal government that a noncitizen is not protected from a lawyer’s failure to provide any advice about the immigration consequences of a plea was rejected, moving away from the view that only “affirmative misadvice” by counsel will be sufficient protection for the noncitizen against ineffective assistance of counsel. Attorneys at the American Immigration Council’s Legal Action Center applauded the decision by the United States Supreme Court, and urged Congress to acknowledge the importance of right to counsel together with the inflexibility and rising criminalization of immigration law, and restore the discretion judges once had to consider particular circumstances in a person’s case, which would therefore afford a fair opportunity to be heard to those individuals facing deportation.
SOURCES:
- Supreme Court Reverses Padilla Finding Counsel Must Inform on Plea’s Deportation Risk (Padilla v. Kentucky, 3/31/10). AILA Doc. No. 10033132. (Posted Mar. 31, 2010).
- Supreme Court Decision Protects Right to Immigration Advice. AILA Doc. No. 10033133 (Posted Mar. 31, 2010).
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