Debunking the Myth That Deportation Is Not Punishment

The Supreme Court has heard argument in a case (Padilla v. Kentucky) in which a defendant who pled guilty claims that he was improperly advised by his lawyer that he would not be deported, notwithstanding that deportation was virtually certain as the result of his plea. The defendant had lived in the United States for 40 years, served in the Vietnam War and was a permanent legal resident. In addition to facing deportation, he received a five year sentence. The argument against his position seems to be that neither the sentencing court nor counsel is obligated to inform the defendant of "collateral matters" such as the possibility or probability of deportation that may arise from his guilty plea. Justice Scalia poses the issue as to other consequences such as the possible loss of child custody or one's driver's license.

There can be no dispute that both counsel in recommending and the court in accepting a guilty plea must inform the defendant of the maximum punishment he faces as a result. In my opinion, that disclosure must include the possibility of deportation. In earlier cases, the Supreme Court has created the myth that deportation is not a form of criminal punishment but rather a civil remedy aimed at excluding unwanted aliens. This legal fiction that deportation following a plea agreement is not punishment and therefore, need not be disclosed is difficult to reconcile with reality.

If you will forgive me the conceit of quoting from one of my own opinions, in which a defendant was not informed of the risk of deportation:

The defendant entered this country at age 12; he has lived here for 36 years; he has been married to an American citizen for 24 years; he has raised 3 children all of whom are American citizens; his elderly parents are American citizens; 2 of his 4 siblings are naturalized American citizens and all 4 of them reside permanently in the United States; he has no ties to Colombia, the country to which he is to be deported; and he has fully served the sentence imposed upon him. If deportation under such circumstances is not punishment, it is difficult to envision what is. Scheidemann v. I.N.S. 83 F.3d 1517,1527 (3rd Cir. 1996)

The consequences of deportation can be so harsh that they are at least the equivalent of prison time, or even worse. It should be a simple matter for the Court to rule that counsel and the trial court are obligated to disclose the risk of deportation, and that failing same, a defendant should have the right to withdraw his or her guilty plea and go to trial. The case is even stronger where counsel has misinformed the client rather than merely failing to inform. Deportation is punishment and defendants should be warned if they face it as a result of their guilty plea.

Comments

[Christina Lane]

It's a case of lawyers playing the role of Justices— and it happens all the time. It happens if you hire a lawyer who is politically opposed to you. He should not have pled guilty if he was not guilty. He also should have hired a sympathetic lawyer. It's how the World works, and it can't be helped.

[halfitaliangirl]

Shouldn't his service in the US Military automatically give him the fast track to citizenship? I didn't know you could be a non-American and serve the US Military. It's not the Foreign Legion, is it?

What did he do that got him in trouble with the law?

[Judge H. Lee Sarokin - Huffpost Blogger]

halfitaliangirl - He pled guilty to a drug crime. I agree that it seems incredible that he can be deported after serving in the Armed Forces, but that's the law. he was a legal permanent resident, but not a citizen.

[tlwinslow]

It's sad to still see our next-door neighbors in Mexico treated like real illegal aliens from dangerous countries like Yemen. It's like hitting a tack with a sledgehammer. When will the U.S. get with the Megamerge Dissolution Solution and work to incorporate Mexico into the U.S. to stop the injustices and allow us to share the New World in peace and prosperity instead of tearing ourselves apart?

[Judge H. Lee Sarokin - Huffpost Blogger]

tlwinslow - Good question. I think the answer probably has something to do with money!

[CDMelty]

When will Canada go ahead and swallow us up. Sheesh, let nations be nations.

[Ken Kyler]

One has to ask why he hadn't become naturalized since his siblings had. He definitely knew he was an illegal immigrant. Punishment? rubbish - allowing him to stay would be a reward for his illegal behavior.

[Judge H. Lee Sarokin - Huffpost Blogger]

Ken Kyler - You may be right. But the only issue is whether he should be advised that he faces deportation. After all of these years here, he probably was not aware of it.

[S1m0n]

It's two different cases. Judge Sorokin illustrated his point about Padilla v. Kentucky by quoting from a distinguished Judge's (himself) decision in a similar case, Scheidemann v. I.N.S.

[Judge H. Lee Sarokin - Huffpost Blogger]

Simon - Thanks for the clarification. I think i am responsible for the confusion.

[FloresdelaHoz]

This is a terrible miscarriage of justice.

[Judge H. Lee Sarokin - Huffpost Blogger]

FloresdelaHoz - Let's hope the Supreme Court agrees.

[vince7]

I disagree. Let's say that he went to trial and was found guilty. Would the outcome be any different? If not then where is the miscarriage? Maybe Judge Sarokin should expound on a person's legal status/standing. The court was right to ignore the defendants 40 year presence in the country and treat him as a non-citizen. 40 years or 40 days, it doesn't matter. The decisions will ultimately depend on the defendant's legal status as a citizen.

If you feels that the laws are wrong then seek to appeal them. Until then the rule of law must apply.