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Supreme Court Affirms That Defense Attorneys Must Advise Clients About Deportation Consequences

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Yesterday the Supreme Court issued a landmark decision in Padilla v. Kentucky when it held that criminal defense attorneys must advise clients about the immigration consequences of pleading guilty. This decision is a significant milestone in restoring some semblance of fairness in a process fraught with anxiety in the aftermath of legislation enacted more than a decade ago.

In Padilla v. Kentucky, Jose Padilla was a lawful permanent resident who has resided in the United States for four decades, and even served in the military during the Vietnam War. In 2001 Mr. Padilla, a commercial truck driver, was arrested in Kentucky after authorities discovered more than 1,000 pounds of marijuana in his truck. At trial, Mr. Padilla's criminal defense attorney wrongfully advised him that pleading guilty to a drug charge would not lead to deportation. In his appeal, Mr. Padilla argued that his defense attorney's misadvice about deportation amounted to ineffective assistance of counsel. The Supreme Court's decision in Padilla acknowledges that as a result of the 1996 immigration laws, even low-level offenses such as shoplifting or marijuana possession, can lead to deportation for a wide cross-section of non-citizens. In many of these cases, Immigration Judges are not allowed to consider the length of time an immigrant has resided in the country, or what impact his/her deportation would have on the U.S. citizen spouse and children.

The decision by the Supreme Court has been embraced by many immigrant rights groups, including the Immigrant Defense Project which not only filed an amicus brief that the Court relied upon in its ruling, but has also responded to more than 12,000 inquiries from advocates and non-citizens about immigration consequences of criminal dispositions.

"We're thrilled that the Supreme Court has recognized that deportation is an extreme penalty and that non-citizens have a constitutional right to legal advice about the consequences of pleading guilty," said Michelle Fei, Co-Director of the Immigrant Defense Project. She continued, "Even though most immigrants' primary concern is their ability to stay in the U.S. they often plead guilty unaware that the result would be permanent exile from their families and their communities."

Arlene M. Roberts is the author of The Faces of Detention and Deportation: A Report on the Forced Repatriation of Immigrants from the English-speaking Caribbean.