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Supreme Court Protects Right to Immigration Advice for Noncitizens in Criminal Proceedings

Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 2010 U.S. LEXIS 2928 (2010)

In a landmark decision, the Supreme 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 onto criminal convictions, and that Congress eliminated from the 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 petitioner in this case is a lawful permanent resident who has lived in the United States for almost 40 years and has served in the U.S. army. He pled guilty to trafficking in marijuana, which renders him removable based on an aggravated felony conviction under INA § 101(a)(43)(B) (illicit trafficking in a controlled substance). His criminal defense counsel incorrectly advised him that his plea would not affect his immigration status. After learning that his lawyer misadvised him, the petitioner sought post-conviction relief in the Kentucky state court. The Kentucky Supreme Court ultimately held that because the immigration consequences were collateral to the criminal case, the Sixth Amendment was not implicated and thus the petitioner was not entitled to accurate advice from his attorney on this issue.

The Supreme Court’s decision reverses the Kentucky court. It also rejects 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.

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