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Wednesday, March 31, 2010

Courts - "Lawyers Must Advise Clients on Deportation, Supreme Court Rules"

Tony Mauro has this report in The National Law Journal, His story begins:

In a decision that one justice called "a major upheaval in Sixth Amendment law," the Supreme Court ruled Wednesday that lawyers have a constitutional obligation to advise clients of the collateral immigration consequences of a guilty plea in a criminal case.

The ruling came in Padilla v. Kentucky, which was eagerly awaited by bar leaders who have focused attention on the professional obligation of lawyers to alert clients about the growing array of consequences that flow from pleading or being found guilty. We wrote about the issue here last fall.

Justice John Paul Stevens, who wrote for the 7-2 majority, cited "the weight of prevailing professional norms" in finding that lawyers must give accurate advice about deportation consequences of criminal proceedings as part of the Sixth Amendment right to counsel, especially when the immigration law is "succinct, clear. and explicit."

In the case before the Court Jose Padilla, a legal permanent resident from Honduras (unrelated to the Jose Padilla involved in past terrorism rulings) pleaded guilty to drug distribution charges in Kentucky after his lawyer advised him not to worry about deportation because he had lived in the U.S. for 40 years. The erroneous advise exposed him to near-certain deportation, and he claimed ineffective assistance of counsel.

Remember the balloon boy? This CNN story from Nov. 12, 2009 is headed "Dad in 'balloon boy' case turns himself in." Some quotes:
The Heenes' attorneys said prosecutors have agreed to a sentence of probation with the possibility of up to 90 days in jail for Richard Heene and up to 60 days in jail for his wife.

The threat of deportation for Mayumi Heene was a factor in the plea deal negotiation, the attorney's statement said.

"Mayumi Heene is a citizen of Japan. As such, any felony conviction or certain misdemeanors would result in her deportation, even though her husband and children are Americans," the statement said.

"It is supremely ironic that law enforcement has expressed such grave concern over the welfare of the children, but it was ultimately the threat of taking the children's mother from the family and deporting her to Japan which fueled this deal."

Tiffany U. Vivo's immigration blog ("Helping Families Navigate Through Immigration & Family Law Issues") had an entry on Nov. 27, 2009 headed "Balloon Boy’s Mother & Immigration Law" that concluded:
Criminal defense attorneys often fail to consider or properly weigh the impact a criminal conviction can have on an immigrant’s immigration status. The extent to which a criminal attorney should consider the impact of a client’s immigration status is currently before the United States Supreme Court. On February 23, 2009, the Supreme Court granted certiorari in Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008), cert. granted, 2009 U.S. LEXIS 1453 (U.S. Feb. 23, 2009) (No. 08-651). The issue in the case is whether criminal defense counsel must inform a client of the immigration consequences of a plea and if not, whether counsel’s gross misadvice about the consequences is a ground for setting aside a plea. Specifically, the Court will address:

1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an “aggravated felony” under the Immigration & Nationality Act, is a “collateral consequence” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and

2. Assuming immigration consequences are “collateral”, whether counsel’s gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

The Kentucky Supreme Court’s position on whether the petitioner should be allowed to seek post-conviction relief represents the minority view. The majority of state and federal courts that have ruled on the issue have held that misadvice can be ineffective assistance of counsel, even in jurisdictions where there is no affirmative duty to advise defendants of the immigration consequences of a plea.

Posted by Marcia Oddi on March 31, 2010 02:32 PM
Posted to Courts in general