U.S. Supreme Court to Hear Case of Criminal Defendant Not Advised of Deportation Consequences
Published: September 14, 2009

On October 13, 2009, the U.S. Supreme Court will hear arguments in a case involving a U.S. lawful permanent resident facing removal from the U.S. as a result of entering into a criminal plea bargain (pleading guilty, as opposed to going to trial, in exchange for a reduced sentence) without being advised by his previous defense counsel of immigration law 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.

With the U.S. Constitution guaranteeing criminal defendants Due Process of Law and legal representation, a criminal defendant who unknowingly accepts a plea deal that involves his removal from the U.S. is troublesome in many ways. Of course, not every case of a lawful permanent resident accepting a plea deal leading to his certain removal from the U.S. is problematic. For instance, it might be a perfectly legitimate decision for a permanent resident to accept a plea deal involving a shortened prison sentence along with deportation consequences, as an alternative to going to trial with a weak case and then facing deportation consequences after serving a longer prison term. The question ultimately boils down to whether the criminal defendant (the permanent resident) would still have accepted the plea deal knowing that deportation consequences may ensue.

At present, permanent residents in most states in the U.S. have an avenue of redress within their state court system by presenting a post-conviction motion to vacate their guilty plea. And as long as the state court’s action to reopen the case and vacate the conviction is premised on constitutional grounds (i.e., ineffective attorney assistance, uninformed decision-making, etc.), and not simply as a vehicle to allow the defendant to avoid deportation consequences, the resident may be able to undo the mistake and avoid removal. But in far too many cases, this remedy is unavailable for prejudiced permanent residents either because the state at issue does not allow such a post conviction motion, or too much time has passed since the time they accepted their guilty plea.

The importance of the constitutional and human rights issues coming before the Supreme Court in this case is reflected in the fact that dozens of immigrants’ rights organizations have submitted their own “friend of the court” brief in support of Padilla’s cause.

For the thousands, if not tens of thousands, of lawful permanent residents who enter into plea bargains every year without ever being informed of immigration law consequences and are prejudiced by their ignorance, the U.S. Supreme Court is ready to have a say, with a decision likely by Spring 2010.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois