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Immigration Law Associates, PC

Supreme Court Decision Protects Right to Immigration Advice

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“Immigration law can be complex and it is a legal specialty of its own.”
–Justice Alito, US Supreme Court in Padilla v. Kentucky, Slip Opinion, Decided March 31, 2010

The Supreme Court

The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years.  His 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 Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea.

The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal. The Court said, “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.”

Although defense attorneys are under no obligation to advise defendants about the immigration consequences of a guilty plea, an attorney who does provide such advice “has a duty to avoid doing so incompetently.” However, because any defendant faced with deportation can allege that his defense counsel’s advice prejudiced their plea decision; courts must find prejudice only when a rational defendant would have insisted on going to trial. According to the court, because going to trial might have exposed Padilla to a longer sentence than he would have received after pleading guilty, Padilla could not rationally have chosen to forgo a guilty plea and proceed to trial.

Today’s decision also reminds us that ultimately, the increased criminalization of immigration law and lack of flexibility has resulted in harsh results. Congress should do its part to restore immigration judges’ discretion to consider the particular circumstances in a person’s case, thus affording each person facing deportation an individualized and fair opportunity to be heard.

Filed under: Immigration Issues

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