Immigration Newsletter

Thursday, April 1, 2010

Court Requires Warning About Deportation Risk -

Court Requires Warning About Deportation Risk -

RAD ~ Padilla v. Kentucky sets an important precedent (especially in states like NH that don't have a mandatory non-citizen warning statute or court rule like the other New England States)
Published: March 31, 2010

“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel,” Justice Stevens wrote.

The vote was 7 to 2, though two justices in the majority would have required only that criminal defense lawyers not say anything false and tell their clients to consult an immigration lawyer if they had questions.

The question in the case, Padilla v. Kentucky, No. 08-651, was whether bad legal advice about a collateral consequence of a guilty plea could amount to ineffective assistance of counsel under the Sixth Amendment.

Justice Stevens said the answer was yes. Where the relevant immigration law is “succinct and straightforward,” he said, the defense lawyer must explain the consequences of a guilty plea. Otherwise, the lawyer “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

“The importance of accurate legal advice for noncitizens accused of crimes has never been more important,” he wrote. “Deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined Justice Stevens’s opinion.

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