If this decision is applicable retroactively, expect a flood of "ineffective assistance of counsel" appeals, perhaps filed by immigration attorneys who otherwise try to stay out of court, not to mention appellate courts. As a practical matter, the USCIS won't contest them all. Somebody will make a phone call or send a memo down, and the deportations of convicted felons will be quietly dropped.
Supreme Court Says Lawyers Must Tell Immigrant Clients of Deportation Risk
By Robert Barnes
Washington Post Staff Writer
Lawyers must advise their immigrant clients facing criminal charges that pleading guilty could lead to deportation, the Supreme Court decided Tuesday.
The court ruled 7 to 2 that the Sixth Amendment guarantee of an effective counsel extends to advice about the risk of having to leave the country.
"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 John Paul Stevens wrote.
Stevens said the responsibilities for lawyers are heightened because of congressional crackdowns on immigrants who commit crimes, even relatively minor ones. "These changes confirm our view that, as a matter of federal law, 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," he wrote.
The case before the court involved California truck driver José Padilla, who was considering whether to plead guilty to trafficking in marijuana. Before agreeing to the plea, he asked his lawyer whether it would affect his status as a legal permanent resident.
Padilla, a native of Honduras, had been in the United States almost 40 years and had served in the Army during the Vietnam War. (He shares a name with, but is not related to, the onetime "enemy combatant" convicted on terrorism charges.) He said his lawyer told him that he did not have to worry about his immigration status because he had been in the country so long.
So Padilla pleaded guilty -- and found out that his lawyer was wrong. Padilla's plea to an aggravated felony left him virtually no defense to deportation once his jail term ended.
On appeal, Padilla argued that his lawyer's bad advice deprived him of the constitutional right to effective counsel and that he should be able to withdraw the plea. The Supreme Court in Kentucky -- where Padilla was arrested -- said a lawyer is required only to advise his or her client about the direct consequences of a guilty plea and not collateral issues, such as how it would affect immigration status.
Tuesday's court majority said that was wrong. "When the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear," Stevens wrote.
Justice Samuel A. Alito Jr. agreed with the outcome of the case but said the majority went too far in extending the Sixth Amendment and what it requires of lawyers. Because immigration law is so complex, Alito said, it is enough for a lawyer to refrain from providing incorrect information and then advise a client to consult an immigration lawyer about the consequences of a guilty plea. Chief Justice John G. Roberts Jr. agreed with Alito.
Justices Antonin Scalia and Clarence Thomas dissented, saying the opinion was "overkill."
"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," Scalia wrote. "The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world."
Padilla, who has been living in California while awaiting the outcome of his legal challenges, now returns to the Kentucky Supreme Court to argue that his lawyer's bad advice means he should be able to withdraw his plea.
The case is Padilla v. Kentucky.
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