Supreme Court Ruling: Counsel must inform non-citizen criminal clients about risk of deportation.

Importance of accurate legal advice for non-citizens accused of crimes has never been more important.

Changes to immigration law have dramatically raised the stakes of a non-citizen’s criminal conviction by expanding the class of deportable offenses and limiting judges’ authority to alleviate deportation’s harsh consequences.

As a matter of federal law, deportation is an integral part of the penalty that may be imposed on non-citizen defendants who plead guilty to specified crimes.

In the 3/31/10 Supreme Court Ruling of Padilla v. Kentucky, a lawful permanent U.S. resident for over 40 years, faces deportation after pleading guilty to drug distribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of the risk of deportation before he entered the plea, but also told him not to worry about deportation since he had lived in the country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla’s post conviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a ‘collateral’ consequence of a conviction.

This is not a hard case to find deficiency, but others will not be so clear cut. There will, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. Informing defendants of possible deportation can benefit both the State and non-citizen defendants, who may be able to reach agreements that better satisfy the interests of both parties.