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Supreme Court Decision Requires Immigrants Be Informed of Immigration Consequences to Criminal Convictions
The Supreme Court recently issued a ruling that provides more rights for immigrants convicted of criminal offences. Criminal defense lawyers are now required to advise immigrants of the potential risk of deportation if they plead guilty. The Court noted that news laws requiring mandatory deportation for certain criminal convictions make these warnings even more important. "These changes to our immigration law have dramatically raised the stakes of a noncitizen´s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important," stated the Court.
The ruling was issued in the case of Padilla v. Kentucky. Jose Padilla, a legal permanent resident and Vietnam veteran who had been in the U.S. for almost 40 years, pled guilty to three drug counts in 2001. Padilla´s crime was considered an aggravated felony under provisions of the Immigration and Nationality Act (INA) and his deportation was mandatory under the Illegal Immigration Reform and Immigration Responsibility Act (IRIRA) enacted in 1996.
Padilla asked his lawyer if agreeing to the guilty plea would trigger any immigration consequences. The lawyer told Padilla that he would not face any immigration consequences because he had been in the U.S. for so long. This was incorrect.
Until this ruling, different courts approached this problem in different ways. Some courts allowed immigrants to appeal a decision only if the lawyer had given incorrect advice. Other courts only allowed an appeal if the advice was "flagrant misadvise" and did not require lawyers to provide any advice at all. Still others offered no protection for lack of advice or incorrect advice. The Supreme Court´s ruling sets a new standard for the accountability of criminal defense lawyers.
