Supreme Court: Lawyers must advise immigrants of deportation threat

Criminal defense lawyers have a constitutional obligation to inform immigrant criminal defendants who are not US citizens of the possibility that a guilty plea could result in deportation.

In a 7-to-2 decision announced on Wednesday, the US Supreme Court expanded the Sixth Amendment right to effective assistance of competent legal counsel to include a defendant’s right to receive accurate advice about the immigration consequences of a possible guilty plea.

“We now hold that counsel must inform her client whether his plea carries a risk of deportation,” wrote Justice John Paul Stevens in the majority opinion.

In a dissent, Justices Antonin Scalia and Clarence Thomas said a lawyer’s constitutional obligation relates to representing a client in a criminal matter and should not extend to collateral issues such as possible deportation and immigration law.

“There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand,” Justice Scalia wrote.

Case began with drug charges

The issue arose in the case of Jose Padilla, who had been charged with transporting a large amount of marijuana in his tractor-trailer in Kentucky. Padilla, a native of Honduras, has been a lawful permanent resident of the US for more than 40 years and served in the US armed forces during the Vietnam War.

After his arrest on the drug charge, his lawyer entered negotiations with prosecutors for a plea agreement. The lawyer advised Mr. Padilla that he didn’t have to worry about his immigration status since he’d been in the US for so long.

The lawyer was wrong. Under US immigration law a drug conviction triggers mandatory deportation. At sentencing, Padilla was ordered deported.

Padilla appealed, seeking to throw out his guilty plea. He argued that his lawyer’s failure to advise him of the deportation consequences of his guilty plea amounted to ineffective assistance of counsel.

Defendant appealed state court loss

The Supreme Court of Kentucky denied his appeal. The Kentucky high court said the Sixth Amendment required effective advice about the criminal charges against Padilla, not the potential immigration consequences of a plea agreement or conviction.

In reversing the Kentucky court, the majority justices said changes in US immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. Deportation can sometimes be the most important part of the penalty faced by noncitizens who plead guilty.

“The importance of accurate legal advice for noncitizens accused of crimes has never been more important,” Stevens wrote.

“There will… undoubtedly be situations in which the deportation consequences of a particular plea are unclear or uncertain,” Stevens wrote. “The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward…, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

He added, “But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

Under the Supreme Court’s established test for competent counsel, a defendant must be able to make two showings. First, the defendant must prove that the lawyer acted in a way that was constitutionally deficient. Second, he must prove that the lack of advice or bad advice resulted in the defendant suffering a consequence more extreme than would have been the case if the proper advice had been given.

Part of the case sent back to Kentucky courts

The Supreme Court decided the first part of that test, ruling that the lawyer’s lack of accurate advice about deportation was constitutionally deficient. But the majority justices remanded the case to the Kentucky courts to decide the second part of the test: whether Padilla would have fared better had he received better advice. (In a 2006 ruling, the Supreme Court took a tough line on deportees.)

Padilla has suggested that if he knew he faced certain deportation, he would have fought the charges at trial. But going to trial rather than accepting a plea bargain from the prosecutor could result in a harsher sentence. In either event, Padilla would face deportation.

Stevens noted that with the timely advice of counsel a third option may emerge for defendants in Padilla’s shoes. “Informed consideration of possible deportation can only benefit both the state and noncitizen defendants during the plea-bargaining process,” Stevens wrote. “By bringing deportation consequences into this process, the defense and the prosecution may well be able to reach agreements that better satisfy the interests of both parties.”

Scalia: 'Constitution not an all-purpose tool'

In his dissent, Justice Scalia said the court should have left it to lawmakers to fashion an appropriate remedy. “The Constitution… is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed,” he wrote.

Scalia said the court, by constitutionalizing the issue, is removing it from the realm of potential legislative fixes. “The court’s holding prevents legislation that could solve the problems addressed by today’s opinions in a more precise and targeted fashion,” he said.