Criminal Defendants Entitled to Immigration Advice

Today, the United States Supreme Court issued a decision in the case of Padilla v. Kentucky (No. 08-651), in which the Court announced that immigrants must be told by their lawyers whether pleading guilty to a crime could lead to their deportation.

The Court’s ruling came in the case of Jose Padilla, who was born in Honduras.  He asked the Supreme Court to throw out his 2001 guilty plea to drug charges in Kentucky.  Padilla asked his lawyer at the time whether a guilty plea would affect his immigration status and was told it wouldn’t.  The lawyer was wrong, and because of that, Padilla faced deportation after living in the United States for more than 40 years as a lawful permanent resident.

Padilla argued that his criminal lawyer’s failure to tell him that his guilty plea could lead to deportation constituted a violation of his Sixth Amendment right to “effective assistance of counsel.”

Majority of the the Supreme Court justices agreed [Justice Alito and Chief Justice Roberts concurred; Justices Scalia and Thomas dissented].

“It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel,'” Justice John Paul Stevens said in writing for the Court.  “To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,” Stevens wrote. “Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

The Court sent the case back to the Supreme Court of Kentucky, which will decide whether Padilla’s guilty plea should be thrown out.

As this case demonstrates, it is critical for a non-citizen to discuss with an attorney any immigration consequences that may arise out of any criminal charges he or she may be facing.  Ultimately, what a person pleads guilty to will determine whether any immigration consequences will follow.  However, even convictions for minor offenses often lead to serious immigration consequences.

The criminal lawyer’s job is usually limited to getting the best possible outcome in criminal court — it is limited to getting someone out of jail, getting the charges reduced and having the client plead to a lesser charge, and reducing the jail time the client may face.  If a criminal defense attorney does not know or understand the immigration consequences of the plea or the sentence, it could be disastrous for the client who is not a United States citizen.  Therefore, even if the lawyer and the client think they have “won” in criminal court, serious immigration consequences, including permanent deportation, may follow.

While a criminal lawyer should be asking his or her client whether they are a United States citizen, most of the times, this does not happen.  Thus, it becomes more important for the client to tell his or her lawyer that he or she is not a United States citizen and to ask what may happen if he or she accepts a certain plea and sentence.  If the criminal lawyer does not know, then it is time to speak to a qualified immigration attorney (BEFORE pleading to anything)!

With the Supreme Court’s decision in Padilla v. Kentucky, we hope that more and more criminal defense attorneys will become aware that it is critical to learn whether their clients are United States citizens or not.  If their clients are not citizens, hopefully, the criminal attorney will consult with immigration attorneys to see how best to proceed for the benefit of his or her clients.  Otherwise, the lawyers may open themselves up to malpractice liability (especially in light of the Supreme Court’s decision today).

Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.
Ruchi Thaker
Posted in Supreme Court Litigation.