In March 2010, the United States Supreme Court set precedence with the
Padilla v. Kentucky
130 S. Ct. 1473. This case addressed the deportation risks that arise in
a criminal defense case when non-citizen defendants plead guilty or no
contest. The Sixth Amendment of the United States Constitution protects
and guarantees an individual's right to effective and competent counsel.
The defendant, Jose Padilla, was aware of his right to counsel and trusted
his criminal defense lawyer when he was arrested and charged for transporting
marijuana in 2001. His lawyer, though, did not inform him of the consequences
that would follow his guilty plea, in regards to his immigration status.
Padilla had been a legal permanent resident (LPR) for more than forty
years when he was arrested in Kentucky, and his attorney advised him that
his plea would not affect his LPR status if he chose to plea guilty following
a plea bargain. Consequently, Padilla faced removal, which is commonly
known as deportation, after pleading guilty.
Padilla filed a pro-se motion for post-conviction relief because of the
ineffective counsel he received from his criminal defense attorney. His
case reached the Kentucky Supreme Court where the Court found that there
were no grounds for post-conviction relief. The defendant took his case
to the United States Supreme Court for further review and post-conviction
relief. According to the United States Supreme Court, if deportation may
be a consequence of a criminal plea or conviction attorneys
inform their clients of this very serious consequence to a guilty plea,
and advice must be given about the immigration consequences. Ultimately,
the Court reversed the decision, establishing that Padilla's criminal
defense counsel should have informed him about the
risk of deportation when pleading guilty to a crime.
The major lesson learned from Padilla is that it is the responsibility
and duty of a criminal defense lawyer to advise a client about the impact
of a client's plea in a criminal court on their immigration status.
Prior to this Supreme Court case, it was assumed that in almost all States
that a Judge would inform every defendant, whether a citizen or not, that
a criminal sentence could affect an individual's immigration status.
However, now it is clear that that responsibility lies in the Criminal
Defense lawyer's hands. It is important for attorneys to be fully
aware of this responsibility and investigate the status of their clients
to inform them of their rights and how their case may potentially affect
their immigration status. It is imperative that a criminal defense attorneys
be fully aware of the of immigration law. If they are like most criminal
defense attorneys in this country and they do not understand the extremely
complex area of immigration law they are charged with referring their
clients to a knowledgeable Immigration Attorney so they know your clients
are protected and have an understanding of the impact the criminal plea
may have on their status
It is absolutely essential for your criminal defense attorney to have immigration
knowledge or the understanding that you must be referred to an attorney
who possesses that knowledge so you can be adequately advised on how the
criminal case may impact your decision to plea. At
Buckmaster & Ellzey we possess that knowledge and experience in both criminal and immigration
law. It is that unique expertise which allows us to make sure your criminal
plea does not affect your immigration status. Please contact an experienced
criminal defense and immigration lawyer at our firm if you are a non-citizen and are facing a criminal case.