Last week the U.S. Supreme Court announced a landmark decision that upholds due process rights for immigrant Americans. The Court held in a 7-2 decision in Padilla v. Kentucky that immigrant defendants have a right to be informed by their counsel about the possible immigration consequences of a guilty plea prior to that client entering a plea.
In this case, the defendant Jose Padilla, a lawful permanent resident of the United States for over 40 years and an army veteran, faced deportation after pleading guilty to marijuana distribution charges in Kentucky. The Courtâ€™s decision is especially important because due process protections for immigrant Americans have continued to erode over the years and because even very minor offenses have been increasingly criminalized in our immigration law so that they carry serious immigration consequences, such as deportation. As a result, what would otherwise be a reasonable plea bargain for a one client becomes a life-altering choice if that client is an immigrant.
Mr. Padilla claimed that his counsel not only failed to advise him of potential deportation before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. Padilla alleged that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendmentâ€™s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a â€œcollateralâ€ consequence of a conviction. The U.S. Supreme Court disagreed.
Writing for the majority, Justice John Paul Stevens explained that because counsel must inform a client whether his plea carries a risk of deportation, Padilla had sufficiently alleged that assistance of counsel in his case was constitutionally deficient. Whether Padilla is entitled to relief on his claim depends on whether he can prove prejudice, a matter the Court left to the Kentucky courts to consider. Justice Stevens wrote, â€œIt is our responsibility under the Constitution to ensure that no criminal defendant â€“ whether a citizen or not â€“ is left to the mercies of incompetent counsel.â€
The Court noted that changes to immigration law have dramatically raised the stakes of a noncitizenâ€™s criminal conviction. Previously, there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation. However, immigration reforms have expanded the class of deportable offenses and limited judgesâ€™ authority to alleviate deportationâ€™s harsh consequences. Based on this, the majority reasoned that because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important.
Thus, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes, and not merely a â€œcollateralâ€ consequence of conviction. In extending the Sixth Amendmentâ€™s right to counsel to immigrants facing criminal charges, Justice Stevens wrote, â€œThe severity of deportation â€“ the equivalent of banishment or exile â€“ only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.â€
The Court noted that in this case because the consequences of Padillaâ€™s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counselâ€™s advice was incorrect. However, in cases in which the deportation consequences of a plea are unclear, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences.
Nebraska Appleseed applauds this decision that strengthens the constitutional rights guaranteed in the United States. We hope that this decision will result in, for instance, standard plea agreements containing clauses advising that a guilty plea could have implications for a defendantâ€™s legal status in the country, local judges reiterating that fact before accepting pleas from non-citizens, defense attorneys contacting a professional immigration specialist for assistance, and additional training on these important issues.