Criminal Attorney must give consequences of deportation possibilities before Guilty Plea
Up until now, an Immigration Attorney would have a very difficult time trying to get post conviction relief for a criminal alien who plead guilty to some crime, was ordered deported and whereby the Immigration Attorney would try to get post conviction relief to give the foreign national an opportunity to try to beat the deportation. Almost always, the Criminal Courts would claim that immigration consequences are ‘collateral’ to the main guilty plea, and because of that, whether they knew or not, a person could make a guilty plea and it would be ‘knowingly’ even though they were not given proper advice by the criminal attorney, or no advice at all regarding the fact the person might be deported.
On March 31, 2010 the United States Supreme Court has decided that it is not correct, fair or equitable to deport someone who was not given the proper advisals and that all of the prior cases from lower courts stating differently are wrong. This is a very big case for an immigration attorney who will now have some real ammunition to use when trying to do post-conviction relief. The U.S. Supreme Court basically states that because of the drastic measure of deportation or removal is virtually inevitable for a vast number of non citizens or residents convicted of crimes, the importance of accurate legal advice for non citizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on non citizen defendants who plead guilty to specified crimes. The case is known as Padilla vs. Kentucky. Basically, before this case, the Strickland case was used to determine whether there was effective legal counsel on this type of matter or not. However, the courts below would use the argument that since it was collateral, it could not be used against an attorney who gave the wrong advice. Being an Immigration Attorney, I never agreed with or understood how it could be ‘collateral’. If a person plead guilty to a particular crime and got a shorter sentence in criminal jail, what was the use if he was deported the rest of his life from the U.S. Finally, we have a case that addresses the reality of this issue. It would be necessary to show that the outcome would be different if the correct advice were given and that the attorney fell below the reasonable standard of care. It if is truly clear that deportation will ensue, then the consequences must be equally clear.
Since there are so many aggravated felonies as any Immigration Attorney will tell you, if the plea is that of an aggravated felony, or one that could be considered to be an aggravated felony, the criminal attorney must be very clear to the defendant that deportation will follow. The case correctly states that now the immigration laws are much more severe and it is much more likely for someone to get a deportation order based upon a crime. In the past, which a typical immigration attorney will agree, there were not nearly as many aggravated felonies or ways of getting deported or removed from the U.S. Finally, the U.S. Supreme Court has made it clear that a person should not be deported because of incompetent counsel.
Therefore, if you are a criminal defendant and are about to plea, be sure to let your criminal attorney know about this case. Alternatively, contact a knowledgeable immigration attorney to work with the criminal attorney on this matter to best protect you. If you have already plead guilty, I would still contact an immigration attorney to try to get post conviction relief under this new case. Even if you are in deportation proceedings or have an order of deportation, you should contact a qualified immigration attorney to prepare the necessary post conviction relief if you qualify.
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Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog 