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Does the Sixth Amendment Require Criminal Defense Counsel to Advise of Deportation Resulting from a Plea?

In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the United States Supreme Court answered this question in the affirmative. The accused's Sixth Amendment Right is violated when defense counsel fails to advise of the deportation consequences of a guilty plea. What remedy then would be afforded non-citizens that accepted a guilty plea to an offense subjecting them to deportation if they did not know of that risk in violation of their Sixth Amendment right to effective assistance of counsel? Since Padilla, the remedy has been to vacate the guilty plea as if it had never been accepted and place both the criminal defendant and the government in the same position, i.e. heading to trial, as if the plea had never occurred. Then, the defendant would have his or her constitutional right to a jury trial and, if found guilty of the same offense subjecting him or her to deportation, he or she would then be in essentially the same position of facing deportation as if the guilty plea had been entered. However, the alternative would be for the accused to win his or her trial and be free to stay in the United States, unless for some reason unrelated to the criminal offense, he or she is not lawfully permitted to remain.

Though this country was largely founded by immigrants, immigration has historically been a heated issue in our country flaring up from time-to-time. Defendant Padilla was born in Honduras, became a lawful permanent resident of the United States (the previous term was getting a "green card" for those unfamiliar with the term) and was in the U.S. for more than 40 years before being arrested for transporting marijuana (per my earlier blog, these are good facts for a favorable outcome for the defendant). His defense lawyer told him he did not have to worry about a conviction regarding the marijuana affecting his immigration status. He was wrong. Padilla was clearly subject to deportation for the conviction. The Supreme Court in that case held that deportation as a consequence of a criminal conviction is so closely related to the criminal process and sometimes even more important an issue than being imprisoned that defense lawyers have a duty to advise non-citizen clients that their plea carries with it the consequence of deportation (when clearly so) or that it may carry a risk of deportation (when a more complex analysis better left to an immigration lawyer to so advise appears to be the case).

The recent U.S. Supreme Court case of Chaidez v. United States, 568 U.S. ___ (2013) determined whether the above rule in Padilla appplied retroactively. In other words, would it be the ineffective assistance of counsel to fail to properly advise immigration consequences to a defendant that accepted a plea 10 years ago? Specifically, the Court decided that this rule announced in Padilla is a new rule and did not apply retroactively to help defendant Chaidez. Chaidez was from Mexico and, after being in the U.S. for 25+ years as a lawful permanent resident, was convicted of defrauding an automobile insurance company out of $26,000.00 and pled guilty to two (2) counts of mail fraud. Fraud is a crime of moral turpitude (dishonesty) and is, thus, an "aggravated felony" subjecting her to removal from the U.S. Chaidez' counsel did not inform her that her plea would subject her to deportation. However, since Padilla was decided after Chaidez' plea, she could not claim her constitutional rights were violated. Whether a rule of law, even emanating from our Bill of Rights, has retroactive application or not is complex and beyond the scope of this blog.

Long before Padilla, our firm believed it appropriate to maintain proficiency with the immigration consequences of criminal convictions. In fact, we have represented defendants before the United States Immigration Court in which immigration consequences of convictions were at issue. That is pretty uncommon for criminal defense attorneys.

What are your thoughts about deportation upon conviction of certain offenses? Do you think the Supreme Court unfairly treated defendants Padilla and Chaidez differently? Let's hear from you.