Best Defender Blog

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   http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

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.

Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.  The Court held that Strickland v. Washington, 466 U. S. 668, applies to Padilla’s claim. Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771.

The Court held that although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.

The Court held that to satisfy Strickland’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, butfor counsel’s unprofessional errors, the result of the proceeding wouldhave been different,” id., at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id., at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of ” ‘[p]reserving the . . . right to remain in the United States’ “and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr, 533 U. S. 289, 323. Thus, this is not a hard case in which to find deficiency:

The consequences of Padilla’s plea couldeasily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations inwhich the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences.

But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland’s first prong.Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance.

Tags: deportation, drugs, federal law, immigration, noncitizen

This entry was posted on Wednesday, March 31st, 2010 at 3:17 pm and is filed under Los Angeles Criminal attorney. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.