U.S. Supreme Court: Non-U.S. Citizens Must Be Advised of Deportation Consequences Before Pleading Guilty
Published: April 1, 2010

On March 31, 2010, the U.S. Supreme Court issued a decision in the case of Padilla v. Kentucky, declaring that noncitizen criminal defendants seeking to plead guilty must be advised by counsel of deportation consequences.

The case arises out of the State of Kentucky, with Jose Padilla, a long time lawful permanent resident and U.S. Army veteran, facing removal to Honduras after agreeing to plead guilty to a state felony charge of trafficking marijuana. The kicker in Padilla’s case is that his defense counsel provided the wrong advice, assuring him that no deportation consequences would follow such a plea. Not only were there deportation consequences for Padilla, but the nature of the conviction he accepted was such that no relief or defense in removal proceedings was available. In essence, Padilla unknowingly accepted a one-way ticket to Honduras following the prison term that was part of his sentence.

The right to counsel was first incorporated into the U.S. Constitution in 1791, with enactment of the 6th Amendment, and the Bill of Rights (the first ten amendments):

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense”

In examining the evolution and current state of our immigration laws over the past century, the U.S. Supreme Court in Padilla expressed concern regarding non-citizen criminal defendants’ 6th Amendment rights and their unknowing acceptance of the disproportionate consequence of deportation:

“Changes to immigration law have dramatically raised the stakes 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.”

For non-U.S. citizens facing deportation (removal) because of their uninformed acceptance of a guilty plea, the recent Supreme Court decision may very well breath new life into their deportation defense. That is, when a non-citizen relinquishes a legitimate defense to the underlying criminal charge based on the assurances of their then criminal counsel, a petition to vacate or reopen the underlying conviction (also known as post-conviction relief) may very well now be viable. With post conviction relief often being a non-citizen’s last line of defense in removal proceedings and final option to remain in the U.S., Padilla v. Kentucky may turn out to be the fresh pretext upon which the criminal court can hang its hat on in reversing the conviction.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois