On March 31, 2010 the Supreme Court held in Padilla v. Kentucky that a where a defendant was not warned of immigration consequences before making his guilty plea, the conviction in some cases must be vacated.  Vacating the conviction can often save a permanent resident from deportation.  The consequences of this decision reach far and likely affect thousands of deportation orders based on criminal convictions.

If you pled guilty to a deportable offense and you were represented by an attorney who failed to advise you of the immigration consequences of your plea, give us a call so that we can evaluate whether it is possible to move the court to vacate your guilty plea.

Before the March 31 Supreme Court decision, the US Circuit Courts of Appeal were divided on whether an attorney's failure to advise a criminal defendant of the immigration consequences of a criminal conviction invalidates the guilty plea.  The Supreme Court claimed to have resolved only the narrow issue where a criminal defense attorney failed to warn and the immigration consequences were clear and unambiguous.  The Court repeatedly noted that the law for Padilla was crystal clear: if he pled guilty to that crime, his deportation was an absolute certainty.

The law compelling Padilla's deportation states: “Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable."  The consequence of deportation for a drug conviction is inescapable unless it is 30 grams or less of marijuana possessed for personal use.  8 USC §1227(a)(2)(B)(i).

The Court also hinted that when immigration consequences of a conviction are less clear, the attorney must only advise that a conviction may carry a risk of adverse immigration consequences.

American Bar Association President Carolyn Lamm issued a statement about the ruling,

"As Associate Justice John Paul Stevens said in the majority opinion, 'The importance of accurate legal advice for noncitizens accused of crimes has never been more important.' It rightly places the burden on criminal defense lawyers to understand that pleading guilty to certain crimes will result in deportation, and acknowledges that deportation can be an even more important penalty 'than any potential jail sentence' to a noncitizen."

Due Process in the Immigration Court

The first case holding that ineffective assistance of counsel violated an alien's due process rights in deportation proceedings was Matter of Lozada in 1988.  The Board of Immigration Appeals decided in Lozada that immigration courts should grant a motion to reopen where an attorney's incompetence likely changed the outcome of the case.  Attorney General Michael Mukasey overruled Lozada in the sensational Matter of Compean decision in January 2009.  Mukasey noted that because an alien does not have a Sixth Amendment right to counsel in Immigration Court along the lines of Gideon v. Wainright, the failure of counsel to provide accurate advice, while morally wrong and appropriate for attorney malpractice liability, did not rise to a constitutional violation of due process.  Upon taking office in 2009, Attorney General Eric Holder suspended Mukasey's decision subject to further review.  Sean Olender wrote a feature article in the June 2009 issue of The Verdict discussing the Compean decision that you can read here.

Due Process in Immigration Court vs. Criminal Court

There is an important distinction between the right to due process in a deportation proceeding and the right to due process in a criminal proceeding that has immigration consequences.  The Court's decision in Padilla discusses only the right to due process in the criminal proceeding noting that a failure to advise the defendant of the immigration consequences of pleading guilty violates his due process.  The Court's decision does not directly affect Lozada or Compean.

But striking in the Court's decision is a long discussion of the seriousness of deportation as a penalty and that to many defendants, deportation is feared more than the criminal sentence.

Justice John Paul Stevens wrote for the majority,

"The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.  The “drastic measure” of deportation or removal... is now virtually inevitable for a vast number of noncitizens convicted of crimes."

It remains to be seen whether this decision marks a transition to a broader reading of Sixth Amendment rights in deportation proceedings.

The case is Padilla v. Kentucky decided March 31, 2010.