On March 31, 2010 the US Supreme Court handed down a 7-2 decision in the case of Padilla v. Kentucky, 559 U.S. _____ (2010).  And boy, have we been waiting on this one.

Briefly, the case is about a long-term green card holder who was given a piece of very bad advice by his lawyer when pleading guilty to a drug offense.   The Sixth Amendment to the US Constitution guarantees that all criminal defendants will have a competent lawyer for their defense.  So the question is, is it incompetence if a lawyer either gives wrong advice or fails to advise his client about the clear risk of deportation?

The lower courts all said no, reasoning that deportation is not a direct criminal consequence of a guilty plea, so a criminal defense attorney has no duty to advise his client of it.  The defense attorney has to advise his client, for example, that he is giving up his right to appeal, to a trial, to confront witnesses against him, to the presumption of innocence, and many other rights, because these are direct consequences of a guilty plea.  But there are other potential consequences: ineligibility to vote, difficulty in finding a job, or loss of security clearance. 

What about deportation?  The lower courts found that deportation is not a direct consequence, but a collateral (or indirect) consequence of pleading guilty.  And these courts refused to place a duty on the defense attorney to advise about deportation, saying in effect it was the same as other indirect consequences, like ineligibility to vote.

The Supreme Court, thankfully, saw differently. It rejected this whole distinction between direct and collateral.  It is an artificial distinction, it has actually never been used, in this context, and it invites absurd results, allowing a defense attorney to misadvise his client regarding what may be the most important factor in his decision to plead guilty.  Even worse, it allows a defense attorney who does not know immigration law to merely remain silent, and fail to advise his client about what may be the most important factor in his decision to plead guilty.

Although deportation has long been considered a “drastic measure,” (see Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948)) this is the first time the Court has found that because deportation is “intimately related to the criminal process” the defense attorney has an affirmative duty to advise about it correctly.  Other immigration consequences (such as ineligibility for naturalization, or eligibility for some form of relief in removal proceedings) should also be advised about, but the Court did not place the duty of knowing all immigration law on the shoulders of defense counsel.  Rather, the duty extends to saying, “Pleading guilty may have some adverse consequences,” but if the risk of deportation is truly clear (e.g., the conviction is considered an aggravated felony by the immigration law) then the advice must be, “Pleading guilty will likely result in your deportation from the United States.”

In my opinion, this is an important case.  But more importantly, I believe this will become a very important case.  Why?  Because for the first time, the highest court in the land has come down definitively to say that “changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction,” and further that the Court found it “most difficult” to divorce the penalty from the conviction in the deportation context.  The law has severely limited judicial review, taken away the old trump card of the JRAD (judicial recommendation against deportation), made deportation virtually automatic for an ever increasing list of offenses, and has exalted form over function in the criminal immigration law.  This is the first time since IIRAIRA in 1996 that the Court has recognized that the current law is so strict that it can easily impinge on an individual’s constitutional rights.  Deportation breaks up families and causes untold hardships on innocent people, the same as a criminal conviction.  I am not suggesting that the law treat immigrants and citizens the same in all contexts.  But to demote deportation to a “collateral civil consequence” like ineligibility to vote is just ludicrous.

It’s time to start using common sense and stop pretending that a Vietnam veteran like Padilla who’s been in the country for 40 years has the same rights as a person who overstayed their visa last month.  The system can’t have it both ways: first making this incredibly complex (and frequently nonsensical) criminal immigration law with the power to automatically deport, but at the same time tell defense attorneys that there’s no need to advise their clients about any of it. 

The Court’s decision, to me, represents the dawning awareness that people’s lives should not be easily destroyable. 

If you have a criminal conviction that has made you removable from the United States, contact an attorney to see if this new decision opens up any new options for you.

Leave a Reply