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March 31, 2010

Criminal Defense Attorneys must advise clients regarding possible deportation

Filed under: Los Angeles Criminal attorney — Tags: , , , , — fayarfa @ 3:17 pm

United States Supreme Court holds that Criminal Defense Attorneys must correctly advise their clients about the effect of a criminal conviction on deportation before pleading guilty.  Padilla v. Kentucky

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drugdistribution charges in Kentucky. In postconviction proceedings, heclaims that his counsel not only failed to advise him of his consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges 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 Amendment’s effective assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counselwas constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. The Court held that changes to immigration law have dramatically raised thestakes of a noncitizen’s criminal conviction.

While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’authority to alleviate deportation’s harsh consequences. 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.


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