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Immigrant Defendants Have a Right to Know about Deportation Consequences

By Tanya Roth, Esq. on April 01, 2010 | Last updated on March 21, 2019

On March 31, the U.S. Supreme Court handed down a decision finding that immigrants have a right to be told by counsel that a guilty plea to a criminal charge may have consequences that would include deportation. If not informed, the lapse amounts to a violation of a criminal defendant's Sixth Amendment right to effective assistance of counsel. Justice John Paul Steven wrote for the majority with Justices Scalia and Thomas dissenting.

The New York Times reports the case behind this decision was that of Jose Padilla (not the U.S.-born terrorist, but another by the name), born in Honduras and a legal resident of the United States for more than 40 years. Brought up on drug charges, Padilla asked his attorney whether a guilty plea would affect his residency status. He was told no, so he entered the guilty plea. His attorney was mistaken and Padilla, threatened with deportation and with the assistance of fresh counsel, appealed and asked the Court to dismiss his original plea.  

The majority of the Court found that the lack of information on a crucial topic like deportation did amount to ineffective counsel. Justice 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.''

While Justice Alito and Chief Justice Roberts concurred with the majority, they felt it was incorrect to demand that criminal defense attorneys be liable for explanations regarding immigration law, an area outside their specialty.

Justices Scalia and Thomas disagreed with the majority of the Court, finding the serious immigration consequences of a poorly informed plea were outside the area protected by the Sixth Amendment. Justice Scalia wrote simply, ''The Sixth Amendment guarantees the accused a lawyer 'for his defense' against a 'criminal prosecution' -- not for sound advice about the collateral consequences of conviction.'' 

The case has been returned to the Supreme Court of Kentucky to re-consider Padilla's guilty plea. 

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