Yesterday, the Supreme Court heard arguments in a Kentucky case that raised questions about whether defense attorneys have a constitutional duty to tell their clients about how guilty pleas in a criminal case might affect their other rights and privileges, including consequences affecting their immigration status or risks of being deported.
This original case was about a Kentucky criminal conviction based on a guilty plea bargain entered by Jose Padilla at the advice of his defense lawyer in exchange for a shorter sentence in 2001 for drug trafficking. Jose Padilla is a citizen of Honduras and had immigrated to the United States over 40 years ago. He was a legal permanent resident (“green card” holder) at the time of the original arrest and trial and his lawyer advised him that the guilty plea would not affect his immigration status. Padilla pleaded guilty in October 2002 and was sentenced to 5 years in prison and 5 years of probation.
Padilla soon found out that the advice from his own lawyer, unfortunately, was wrong: drug trafficking is an “aggravated felony” and under an existing law known as “Illegal Immigration Reform and Immigrant Responsibility Act of 1996,” (often referred to as “IIRIRA”), noncitizens convicted of “aggravated felonies” are to be removed (deported) from the United States! In the last effort to fight for his legal immigration status to remain in this country, Padilla filed a motion in 2004 in Kentucky court trying to withdraw his original guilty plea, arguing that he would not have pled guilty had he known about the immigration consequence. The case went all the way to the Supreme Court hearing yesterday.
Although, generally speaking, a lawyer must fully inform a client of the direct consequences of a guilty plea, such as potential jail time, lawyers do not have a general duty to explain all other possible “collateral consequences” like losing the right to vote or own firearms. The lawyers for Padilla argued yesterday that loss of immigration legal status or to be removed from this country is such an important issue that is so important to Padilla’s decision and fate that a lawyer’s incorrect advice warrants overturning the conviction and possibly bringing a new trial. The Justices are to make a ruling within the next two months.
Yu, South & Associates are very interested in the final ruling by the Supreme Court on this case, as it would carry a landmark impact on many of the past and current deportation and removal cases involving alien respondents with a criminal conviction based on guilty plea at the advice of their defense counsels without explaining to them “all the consequences” especially the risks of being deported because of the guilty plea. Yu, South & Associates will watch closely the rulings in this case and will bring to you the latest development of the case on our website.
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