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U.S. Supreme Court: Counsel Must Advise Immigrant Defendants of Deportation Risks

An immigrant charged with a criminal offense must be advised of the deportation consequences associated with pleading guilty, the U.S. Supreme Court held on March 31, 2010.

Jose Padilla was charged with drug trafficking after he was caught in Kentucky driving a tractor-trailer loaded with marijuana. Padilla, a lawful permanent U.S. resident for 40 years, pleaded guilty after he was allegedly told by his attorney that he “did not have to worry about immigration status since he had been in the country so long.”

Padilla’s attorney was wrong. Padilla had a lot to worry about, since his guilty plea to felony drug charges exposed him to automatic deportation. He tried to withdraw his plea but the Kentucky Supreme Court denied relief, holding the Sixth Amendment right to effective assistance of counsel did not extend to misadvice concerning collateral consequences of a conviction, such as deportation. See: Commonwealth v. Padilla, 253 S.W.3d 482 (Ky 2008).
The U.S. Supreme Court granted certiorari.

Looking at the long history and seriousness of deportation, and equating it with the arcane punishment of banishment, the Supreme Court held that advice regarding deportation falls within “the ambit of the Sixth Amendment right to counsel,” regardless of whether deportation is properly characterized as a direct or collateral consequence of conviction. As such, the misadvice given by Padilla’s lawyer was subject to the familiar two-part analysis for ineffective assistance of counsel claims set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Under the first Strickland prong, the Supreme Court, taking Padilla’s allegations as true, found deficient performance by his attorney because “[t]he consequences of Padilla’s plea could be easily determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.”

Further, the Court wrote, “prevailing professional norms” in the form of American Bar Association (ABA) standards had dictated for some time that “counsel must advise her client regarding the risk of deportation.” And while ABA standards are “only guides” and not “inexorable commands,” they remain “valuable measures of prevailing professional norms of effective representation,” the Supreme Court stressed.

Accordingly, in order to “ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel,’” the Court held that “counsel must inform her client whether his plea carries a risk of deportation.”

The Supreme Court did not resolve whether Padilla was prejudiced by his guilty plea, however, because the lower court did not address the issue of prejudice. The judgment of the Kentucky Supreme Court was accordingly vacated and the case remanded for further proceedings. See: Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

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Padilla v. Kentucky


 

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