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High Court: Lawyers Must Give Immigration Advice

In a decision that could affect tens of thousands of people, the U.S. Supreme Court has ruled that immigrants living in this country must be told by their lawyers whether pleading guilty to a crime could lead to deportation.

Jose Padilla, a native of Honduras and a decorated Vietnam War veteran, has lived in the United States legally for 40 years. A truck driver, he was stopped at a weigh station in Kentucky in 2001, and gave a law enforcement officer permission to search his truck. Stowed among his registered cargo were 23 Styrofoam boxes containing a half-ton of marijuana. Although he was a legal permanent resident, he was held erroneously in prison without bond as an illegal alien. He refused to plead guilty until the eve of trial, and says he only agreed because his lawyer assured him that his guilty plea and a five-year prison sentence would not affect his immigration status. The lawyer was wrong.

The guilty plea triggered a mandatory deportation, to take effect after the prison term was served. Padilla, upon learning that, tried to withdraw the plea, contending that he had been denied effective assistance of counsel. The Kentucky Supreme Court ruled against him, concluding that the constitutional right to counsel does not extend to matters that fall outside the criminal case at hand. On Wednesday, the U.S. Supreme Court disagreed, by a 7-2 vote.

Majority Opinion

Writing for the court majority, Justice John Paul Stevens noted that because Congress over the past two decades has made deportation mandatory for a wide variety of crimes, the stakes have been dramatically raised for an immigrant noncitizen pleading guilty. Although staying in the United States may be more important than any potential jail sentence, he said, defendants are often not advised that a guilty plea may result in their deportation. In a case like this, Stevens added, where a simple reading of the statute would have told the lawyer her client would face certain deportation, failing to provide that information denies the defendant the effective assistance of counsel.

"It is our responsibility," said the court, "to ensure that no criminal defendant is left to the mercies of incompetent counsel," and "we now hold that counsel must inform her client whether a plea carries the risk of deportation."

The court's decision sent the Padilla case back to the Kentucky courts for further action.

Although the justices said they did not believe their decision would result in opening the floodgates for reconsideration of previous guilty pleas, immigrant-rights advocates clearly saw an opening. They said the ruling could affect tens of thousands of both old and new cases. "I think historic is not an understatement," said Benita Jain, co-director of the New York-based Immigrants' Rights Project.

Decision Welcomed

"This is really a watershed decision in the immigration rights area," said Stephen Kinnaird, who represented Padilla in the Supreme Court.

Kinnaird noted that with nearly 13 million foreigners living legally in the United States, some of whom came here as toddlers, it is axiomatic that tens of thousands will have some sort of run-in with the law each year. And just as U.S. citizens who face similar charges do, most agree to plead guilty in exchange for a lighter sentence, or no jail time at all. That is where the similarity ends, said Kinnaird. For immigrants, when it turns out that the crime results in automatic deportation, "they're shocked by it because they had no idea."

The examples of such cases are legion, from the woman who stole a bottle of medicine for her sick child, to the Georgia business owner with no criminal record, pulled over by police one night and charged with a drug violation after a dollar bill in his pocket was found to have trace amounts of cocaine. His guilty plea in exchange for no jail time and a promise to expunge his record did not protect him from deportation proceedings.

Immigrant-rights advocates say that the more minor the crime and the lighter the sentence, the greater the shock at the near-certain deportation that may follow.

Jain, of the Immigrants Rights' Project, notes that deportation for an immigrant who's been here since childhood can mean being deported to a country where the individual has no family left, where he or she may not speak the language, and may not know how to "get a job, a house or even order a meal." And for some immigrants granted asylum here, deportation may return them to a country where they risk persecution.

Lawyers' Obligation

For the most part, the Supreme Court's ruling will only help legal residents in the U.S. But for those here illegally, there are situations in which a pending application for legal status could be jeopardized by a guilty plea.

Whatever the situation, the 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 his or her client that the guilty plea triggers automatic deportation. In less clear cases, the lawyer must still advise that an immigrant's status could be in jeopardy.

Dissenting from Wednesday's ruling were Justices Antonin Scalia and Clarence Thomas. Said Scalia: "In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world."

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