Sentinel Articles


U.S. Supreme Court Decision

Posted 2/06/11 (Sun)

By: Linda Catalano, LSND Attorney

The non citizen defendant in this case, Jose Padilla, was legally admitted to the United States and had lived in the United States for more than 40 years prior to his arrest on drug charges. His criminal defense lawyer advised him that he “ did not have to worry about immi-gration status since he had been in the country so long.” Because of that advice, Mr. Padilla pled guilty to drug charges which resulted in auto-matic deportation under federal immigration statutes. Mr. Padilla unsuccessfully appealed to the Supreme Court of Kentucky. The Kentucky Court ruled that the Sixth Amendment does not apply to the guarantee of effective assistance of counsel when the advice concerns deportation, as deportation was only a collateral consequence of his criminal conviction.

Mr. Padilla then appealed to the U.S. Su-preme Court, who accepted his case to decide whether Mr. Padilla’s attorney was required to advise him that pleading guilty to the criminal charge would result in deportation from the United States.

On March 31, 2010 the United States Su-preme Court held that under the Sixth Amend-ment to the United States Constitution defense attorneys “must inform” non citizen clients whether a “plea (to a criminal charge) carries a risk of deportation.” If this advice is not pro-vided to clients who are criminal defendants, the
representation under the Sixth Amendment is constitutionally deficient. The Court specifically ruled that deportation is a critical part of any criminal penalty which could be given to non citizen defendants who plead guilty to crimes which, under the Immigration and Nationality Act, require deportation from the United States.

The reasoning of the Court was based on its analysis of the history of deportation as a consequence of criminal conduct pursuant to the implementation of the Immigration and Nation-ality Act of 1917 (INA). The Court found that under the original INA, judges presiding over criminal proceedings involving non citizens had broad discretion to override what otherwise would have been an automatic deportation due to a conviction for crimes listed in the INA. In 1948, the U. S. Supreme Court termed deporta-tion as a “drastic measure”. As recently as 1986, after expansion of the list of deportable offenses, federal courts presumed that possible deporta-tion based on a criminal conviction was a central issue to be addressed in the sentencing process. It clearly was not envisioned as a mere collateral matter outside of the standard criminal sentenc-ing process. Therefore it was not considered outside the defense attorney’s scope of criminal representation.

By 1997 Congress had eliminated all ju-dicial discretion and almost all similar discretion given by law to the U.S. Attorney General. To-day, more than a decade later, Congressional action has added more types of conduct and broadened the definitions of that conduct as deportable offenses. At the same time and as a result,
the risk of deportation for non citizens has increased dramatically. As the U. S. Supreme Court stated in Padilla, “The importance of accurate legal advice for non citizens has never been more important. Theses changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on non citizen defendants who plead guilty to specified crimes.”

What this means for non citizens charged with a criminal offense, is that the attorney representing them in the criminal case must clearly advise them if a plea of guilty to the offense charged or any charge under consideration would subject the client to deportation. If the charge being pled to is not a clearly deportable offense, then the defense attorney must, at a minimum advise the client that there is a possibility
of deportation.

Although the focus of this decision was the constitutional right to effective assistance of counsel, the Supreme Court addressed the prosecuting attorney’s role. First, it is to be aware that when a guilty plea is entered on a criminal charge which can trigger deportation, the deportation is a criminal penalty in addition to any statutory jail time or fine in any sentence imposed. Second, the prosecuting attorney has an
obligation to see that justice is done based on the crime and in light of a deportation removing all U.S. liberties and privileges.

In his concurring opinion, Justice Alito contends that following what the majority of the Court believes is feasible and fairly straight forward by way of deportation advice to defendants, is a serious simplification of the complexity of immigration law and its application. Unti there is a solid track record of the outcome to defendants of this new standard and the consistency of decisions in the federal circuits about the application of the Padilla decision, defense attorneys must strive to provide advice on clear cut deportation situations and general deportation risk advice to defendants. This standard is more than has ever been required in the past and has two benefits. First it will help educate and prepare defendants for any serious potential immigration consequences they will or may face. Second, it is supposed to make plea agreements reflect the best interest of justice if deportation is likely .

In North Dakota, the North Dakota Commission on Legal Counsel for Indigents is providing training and legal resources to public defenders and private criminal defense attorneys who contract to provide indigent criminal defense to ensure clients are afforded the legal advice and benefits expected by the Court as a result of its ruling in Padilla.