Supreme Court requires criminal lawyers with non-citizen clients to advise of possible immigration consequences of guilty plea
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers some astute observations about this recent Supreme Court decision.
The March 31, 2010 Supreme Court decision on the obligations of counsel for noncitizens charged with committing a crime has been applauded generally by immigration lawyers. The Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences arising out of criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”
The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The high Court’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.
“Everyone should have the right to effective counsel,” explained Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz, “it’s perhaps the most crucial tenet of our criminal justice system. By this decision, the Supreme Court affirms that immigrants should not be considered at fault when they rely on incorrect advice from their lawyers or where their lawyers fail to provide any immigration advice at all.” According to Rabinowitz, this decision is also a stark reminder that the lockstep increased criminalization of immigration law coupled with limitations on judicial discretion is not a solution to potential immigrant malfeasance. “In a compassionate or just nation, each person facing deportation should at least get an opportunity to have a day in court,” Rabinowitz concludes.
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