Posts Tagged ‘immigration advice’

Supreme Court Protects Right to Accurate Immigration Advice

Tuesday, May 18th, 2010

In a landmark decision on the rights of foreign nationals to obtain accurate immigration counsel, the Supreme Court ruled on March 31st that lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. In doing so, the Court affirmed the right to counsel for noncitizens charged with committing a crime. The Supreme Court in Padilla v. Kentucky recognized that current immigration laws dramatically raise the stakes of a noncitizen’s criminal conviction and impose harsh and mandatory deportation consequences for such convictions. “The importance of accurate legal advice for noncitizens accused of crimes has never been more important,” the Court proclaimed.

The case involved a 40-year permanent resident, Jose Padilla, whose criminal defense lawyer advised him not to worry about the immigration consequences of pleading guilty to a crime. That advice was not only wrong but the guilty plea subjected Mr. Padilla to mandatory deportation from the United States. The Kentucky Supreme Court held that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The Supreme Court reversed that decision and rejected the federal government’s position – also adopted by several other courts – that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea. The Court held that Mr. Padilla’s counsel was constitutionally deficient and affirmed that immigrants should not be held accountable when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all.

The Court also considered but discounted concerns that the decision would open the floodgates to the courthouse doors because “a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Nevertheless, the Court’s decision will have broad application to immigrants seeking post-conviction relief, even though its precise reach and the practical reality for foreign nationals facing deportation (or having been deported) has yet to be determined. At a minimum, it will permit those foreign nationals who were not counseled by their lawyers on the immigration consequences of their guilty pleas to assess whether their case should be reconsidered.

Significantly, the decision also acknowledges in no uncertain terms that the increased criminalization and lack of flexibility of immigration law have led to harsh results. The Court concluded: “counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

We will provide more guidance on the implications of Padilla in the upcoming weeks and months. In the meantime, contact us if you believe your case may benefit from a Padilla review.