Immigration Consequences for Criminal Offenses: Lawyers Must Warn Clients

In a 7-2 decision issued March 31, 2010 the U.S. Supreme Court ruled that criminal defense lawyers must advise their non-citizen clients about the potential immigration consequences that flow from a guilty plea. The case concerned a Honduran man named Jose Padilla (not related to the terrorism suspect) who had lived in the United States legally for over 40 years, and had fought for U.S. forces in Vietnam. Padilla was arrested in 2001 for possession of a large amount of marijuana, and pleaded guilty to drug-distribution charges after his lawyer advised him not to worry about deportation since he had lived here legally for so long.

The Los Angeles Times reports that the Supreme Court stopped the deportation of Mr. Padilla, “ruling that he deserved a new hearing and possibly a new trial because of the faulty legal advice” he received from his lawyer. (See: Defendants Deserve Immigration Advice, Court Rules, by David G. Savage, Los Angeles Times, 31.Mar.2010) The LA Times noted that the court’s opinion “emphasized the stark changes in immigration law since 1996,” which have reduced the discretion of individual judges to consider mitigating factors that might prevent non-citizens for being deported when they are convicted of certain crimes.

The case will provide a degree of protection to foreigners who become enmeshed in the American criminal justice system, ensuring their right to adequate legal counsel about the potential immigration consequences of pleading guilty, even to a lesser charge. By raising the profile of this issue, the case also has the salutary effect of a cautionary tale, warning the otherwise-unwary that criminal convictions can terminate their rights to stay in the United States – even if they have lived here legally for years, and even if they have served in the U.S. military. The best defense is not to get in trouble in the first place!