Effective Legal Counsel for ALL
It’s a great day for civil rights! In a 7-2 ruling, the U.S. Supreme Court just declared that criminal attorneys MUST advise their non-citizen clients about the immigration consequences of a guilty plea. In a society that is supposed to require effective legal counsel for those accused of crimes, this just makes sense. Here’s some expert analysis from ACLU of Nevada board member and local immigration attorney, Peter Ashman:
Today, the U.S. Supreme Court held in Padilla v. Kentucky that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General's discretionary authority to cancel removal in meritorious cases. The Court said, "These changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important."
This case involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime because of the length of time Padilla had resided in the U.S., but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. Today's decision reverses the Kentucky court. It also rejected the federal government's position (which had been adopted by several courts) that a noncitizen is protected only from "affirmative misadvice" and not from a lawyer's failure to provide any advice about the immigration consequences of a plea. Nevada has long ago adopted the "collateral consequence" position advanced unsuccessfully by the State of Kentucky. (Barajas v. State, 115 Nev. 440, 991 P.2d 474 (1999)
The right to counsel is at the very core of our criminal justice system. The Court affirms that immigrants have the right to challenge plea agreements when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all, if they can also show prejudice. Today's decision also reminds us that ultimately, the increased criminalization of immigration law and lack of flexibility has resulted in harsh results. Congress should do its part to restore immigration judges' discretion to consider the particular circumstances in a person's case, thus affording each person facing deportation an individualized and fair opportunity to be heard.
If you are an attorney and want to learn more about what this means for you, please check the ACLU of Nevada website for information about possible trainings. For more info about our organization’s work on immigrants’ rights, visit http://www.aclu.org/immigrants-rights/.