June 2, 2010

U.S. Supreme Court finds Right to Counsel Includes Immigration Advice

The U.S. Constitution guarantees criminal defendants a sixth amendment right to competent immigration advice where a guilty plea in the criminal case could result in deportation, according to the U.S. Supreme Court in its March 31, 2010 ruling in Padilla v. Kentucky.

The Defendant Jose Padilla, a lawful permanent resident of the U.S. for over forty years, faced deportation after being convicted of felony drug-distribution charges based on a guilty plea. The Defendant argued that his plea stemmed from not being adequately informed of its immigration consequences by his counsel.

In a 7-2 vote led by Justice John Paul Stevens and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, the Court overturned the Supreme Court of Kentucky’s decision that it was not necessary to examine whether there was a violation of the Defendant’s sixth amendment right to counsel because of the classification of deportation as a mere “collateral consequence” of a guilty plea outside the scope of the criminal lawyer’s responsibilities to the defendant  Writing for the majority, Justice Stevens noted the gravity of the penalty of deportation as being one that could be more serious than the punishment for the underlying crime.  In cases where the applicable immigration law is clear, the Court held that criminal defense attorneys must advise their clients of specific immigration risks of a guilty plea, whereas in more complex situations they have a duty to advise the client generally of the possibility of adverse immigration consequences.