Judge Stevens writing for the majority began by emphasizing that the risk of deportation must be considered an “integral part: of the possible penalty for noncitizen defendants. Reviewing nearly a century’s worth of immigration law, the Court noted that deportation, a “drastic measure,” is now an inevitable consequence for a “vast number” of convicted immigrants. This is further heightened by recent restrictions on judicial discretion in the immigration arena. Thus, the stakes of criminal convictions have been raised dramatically.
In a nutshell, the Court ruled that criminal defense attorneys must advise their clients if a guilty plea would put them at risk of being deported especially if the client asks this question. The Court took note of the importance that criminal defendants are aware that their criminal record could negatively impact their ability to stay in this country. In fact, the court stated that for some individuals, “the ability to remain in the country can be more important to a client than the possibility of a jail sentence.”
I am working on several cases that involve clients with prior criminal convictions, and are now in removal proceedings. The facts are essentially the same in that their prior criminal defense attorneys failed to notify them of the direct consequences of their plea (deportation) or affirmatively responded that no deportation proceedings would occur as a result of their guilty plea. It is clear, that what happened to Padilla is not rare but unfortunately, is more common than should be. Many attorneys fail to do the extra work nor will they even inquire of their clients’ status.
The Court now makes it the responsibility of the criminal defense attorney to advise his/her client of direct consequences of a guilty plea, such as how it would affect the immigration status. As Judge Stevens wrote, “When the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”
However, to win your case based on ineffective counsel, you must show that actual prejudice occurred due to the bad advice or lack of advice of your attorney. But the Padilla case is a watershed decision in the immigration rights area. With millions of foreigners living legally in the U.S., some of whom came here as young as babies, it is not uncommon that thousands would have some sort of contact with law enforcement or the criminal courts each year.
Just as any U.S. citizens who face similar charges do, most agree to plead guilty in exchange for a lighter sentence, or no jail/prison time at all. But that is where the similarity ends. For immigrants, when it turns out that the crime results in automatic deportation, they are shocked by it because they had no idea.
For many, deportation for an immigrant, especially those who have been here since childhood can mean being deported to a country where the individual has no family, where he/she may not speak the language and may not know how to “get a job, a house, or even order a meal.” And for those immigrants granted asylum in the U.S., deportation may return them to a country where they risk persecution.
The Padilla ruling will only help legal residents. For those here illegally, there are situations in which a pending application for legal status could be jeopardized by a criminal conviction. Whatever, the situation, the U.S. Supreme Court has now declared that lawyers cannot remain silent on the effect a guilty plea may have on a defendant’s immigration status. In clear cases, a lawyer must advise the client that the guilty plea triggers automatic deportation. In less clear cases, the lawyer must still advise the client that his/ her immigration status could be in jeopardy.