Defense lawyer must warn client of deportation risk

Posted: 6:27 pm Wed, March 31, 2010
By Associated Press

WASHINGTON — Immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation, the Supreme Court said Wednesday.

The high court’s ruling extends the Sixth Amendment guarantee of effective assistance of counsel in criminal cases to immigration advice, especially in cases that involve deportation.

“The severity of deportation — the equivalent of banishment or exile — only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation,” said Justice John Paul Stevens, who wrote the opinion for the court.

The decision puts a new burden on lawyers to advise immigrant clients about the consequences of a guilty plea, although Stevens said he doubted the decision will affect old plea bargains for immigrants. Twenty-one states already require some degree of notification. Twenty-seven states also say the cost of providing lawyers for poor immigrant defendants will skyrocket because the states could also have to pay for immigration advice.

Stephen Kinnaird, who argued the case to the Supreme Court, said the decision recognizes “the increased intertwining of criminal and immigration law.”

“This should avert many of the tragedies that occur when lawful permanent residents are not advised that a guilty plea, even to minor criminal offenses, would result in their immediate deportation,” he said.

Justice Samuel Alito and Chief Justice John Roberts concurred in the opinion, but said it was wrong to force criminal lawyers to attempt to explain what immigration consequence a criminal plea might bring.

“A criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise,” Alito said.

The case is Padilla v. Kentucky, 08-651.

Jose Padilla was born in Honduras but has lived in the U.S. for more than 40 years as a legal permanent resident. (Though their names are the same, he is not the convicted terrorism plotter.)

Padilla asked the high court to throw out his 2001 guilty plea to drug charges in Kentucky, which made his deportation virtually mandatory. He said he asked his lawyer at the time whether a guilty plea would affect his immigration status and was told it wouldn’t.

The justices also heard arguments Wednesday in a case that raises other aspects of the same provision of immigration law. That case is an appeal by Jose Angel Carachuri-Rosendo, a Mexican man who lived legally in the U.S. for more than 20 years. Carachuri-Rosendo was deported after pleading no contest to possessing one tablet of the anti-anxiety drug Xanax without a prescription. A year earlier, Carachuri-Rosendo had pleaded guilty to possessing less than two ounces of marijuana.

The justices appeared to struggle with how to view the virtually automatic deportation that follows a second drug offense, however minor.

The Obama administration, defending the law, said Carachuri-Rosendo’s second conviction could have been treated as a serious crime under federal law.

In Padilla’s case, his appellate lawyer told the Supreme Court that the incorrect information given Padilla was a violation of the Sixth Amendment right to effective assistance of counsel.

The Supreme Court’s majority agreed.

“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the ‘mercies of incompetent counsel,’” Stevens wrote for the court.

The court sent the case back to the Supreme Court of Kentucky, which will decide whether Padilla’s guilty plea should be thrown out.

Justices Antonin Scalia and Clarence Thomas dissented, saying the immigration consequences of a guilty plea were beyond the reach of the Sixth Amendment.

“The Sixth Amendment guarantees the accused a lawyer ‘for his defense’ against a ‘criminal prosecution’ — not for sound advice about the collateral consequences of conviction,” Scalia said.