In March 2010, the United States Supreme Court set precedence with the decision of 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 Law 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.