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U.S. Supreme Court : Attorneys are Required to Advise Noncitizens of Immigration Consequences

In Padilla v. Kentucky, the United States Supreme Court recently held that criminal defense attorneys are required under the Sixth Amendment to the Unites States Constitution to inform non citizen clients of the immigration consequences of their guilty pleas.

The Padilla case arises from a state post-conviction proceeding in which Mr. Padilla sought to vacate his plea based on a claim of ineffective assistance of counsel. He pled guilty to a drug trafficking charge after his counsel misadvised him that the plea would have no effect on his lawful permanent residence. In fact, the drug trafficking conviction was an aggravated felony, the most serious type of offense for immigration purposes which results in nearly automatic deportation. Notwithstanding that Mr. Padilla had been a permanent resident for forty years and a U.S. veteran of the Vietnam War, he faced deportation from the U.S. for this conviction, he was not eligible for any defenses to deportation, and would be barred permanently from returning to the U.S.
In its decision, the Supreme Court first discussed whether deportation was a direct or collateral consequence of a criminal conviction, as the Sixth Amendment right to effective assistance of counsel has only applied historically to direct consequences. Writing for the majority of five members of the Court, Justice Stevens stated that it was difficult to classify deportation as a direct or collateral consequence, because[d]eportation 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." Padilla, 2010 U.S. LEXIS at *15.1 "Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process." Id. at *18, citing INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). While not finding that deportation is a direct consequence of a conviction, 2 the Court held that the Sixth Amendment right to counsel includes advice regarding deportation, because of the close connection between crimes and deportation and the fact that "removal is practically inevitable" for anyone who has committed a deportable offense. Padilla, 2010 U.S. LEXIS at *14. Consequently, the standard for effective assistance of counsel under the Sixth Amendment, as set out in Strickland v. Washington, 466 U.S. 668 (1984), applies to such advice.
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