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Learn what the United States Supreme Court Decided About Deportation Consequences of criminal convictions.

In a recent case the United States Supreme Court decided that attorneys representing noncitizens in criminal cases must advise their noncitizen clients about the risk of deportation if they accept a “guilty plea”.  The Court seemingly recognized that the Immigration and Nationality Act in some cases imposes mandatory deportation from the United States for the noncitizen criminal defendant. 

The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years.  His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong.  In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States.  The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence.  The recent Supreme Court decision reverses the Kentucky court and rejects the federal government's position (which had been adopted by several 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.

Like it or not, the right to effective criminal defense counsel is at the very foundation of our criminal justice system. In making its decision, the Supreme Court has sent a clear message that immigrants should not be held accountable when they rely on bad advice from their criminal defense attorney.

In my experience, most criminal defense attorneys who practice in state courts know very little about the potential immigration consequences in criminal cases for noncitizens.  This case now signals to all those attorneys that they need to educate themselves of these consequences, lest they be held responsible for malpractice.

The need for correct advice from criminal defense lawyers is even more compelling because there is as yet no system of appointed lawyers to give immigration advice before people are deported.  Thus, almost all defendants must rely only on their criminal defense lawyer for any legal advice about immigration law.

The Supreme Court knows how to draw lines and hold back floodgates.  It should recognize that immigration consequences can be severe, sometimes even more severe than the criminal consequences of guilty pleas.  The Court should hold that a defendant who pleads guilty after receiving incorrect immigration law advice from his or her defense lawyer is entitled to withdraw that plea.