Criminal Deportation and a New U.S. Supreme Court Case

          The United States Supreme Court recently decided a case called Padilla v. Kentucky in which the issue was whether Mr. Padilla's lawyer provided him with ineffective assistance of counsel when he failed to tell Padilla that he might be deported from the U.S. after pleading guilty to drug-distribution charges because he was a lawful permanent resident of the United States rather than a naturalized citizen.  According to Padilla, his lawyer told him not to worry about being deported because he had been living in the U.S. for over 40 years.

         

          The Supreme Court agreed with Padilla that his lawyer's legal representation was constitutionally deficient and provided the following reasons for coming to that conclusion:

         

          1.  The weight of prevailing professional norms in the legal community supports the view that an attorney must advise her noncitizen client of the risk of deportation if the client pleads guilty to certain criminal charges;

 

          2.  The Supreme Court has previously recognized the importance to a noncitizen client of preserving his right to remain in the U.S. if he is already here legally;

 

          3.  The consequences of Padilla's plea bargain could easily have been determined by Padilla's lawyer had he simply read the federal statute pertaining to deportation;

 

          4.    According to that particular statute, Padilla's deportation was presumptively mandatory if he pled guilty to drug-distribution charges; and

 

          5.  The legal advice provided by Padilla's attorney was incorrect.

 

          The Supreme Court continued on to state, however, that in those cases in which the deportation consequences of a plea agreement are unclear, a criminal defense attorney need do no more than advise her client that the pending criminal charges may carry adverse immigration consequences.  But when deportation consequences are clear, as they were in Padilla's case, it is a lawyer's duty to provide correct legal advice to her client.

 

          If you are not a citizen of the United States and are facing criminal charges, it is essential that you consult with a knowledgeable criminal defense attorney.  To not do so is to run the risk of ending up in the same situation as Mr. Padilla.

 

          If you would like to learn more about the Padilla decision and its likely impact, you may wish to read an article published by the Immigrant Defense Project entitled "Duty of Criminal Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky."

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