Court Requires Warning About Deportation Risk - NYTimes.com

Court Requires Warning About Deportation Risk - NYTimes.com

RAD ~ Padilla v. Kentucky sets an important precedent (especially in states like NH that don't have a mandatory non-citizen warning statute or court rule like the other New England States)
By ADAM LIPTAK
Published: March 31, 2010


“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel,” Justice Stevens wrote.

The vote was 7 to 2, though two justices in the majority would have required only that criminal defense lawyers not say anything false and tell their clients to consult an immigration lawyer if they had questions.


The question in the case, Padilla v. Kentucky, No. 08-651, was whether bad legal advice about a collateral consequence of a guilty plea could amount to ineffective assistance of counsel under the Sixth Amendment.

Justice Stevens said the answer was yes. Where the relevant immigration law is “succinct and straightforward,” he said, the defense lawyer must explain the consequences of a guilty plea. Otherwise, the lawyer “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

“The importance of accurate legal advice for noncitizens accused of crimes has never been more important,” he wrote. “Deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined Justice Stevens’s opinion.

Click on the title to see the whole article at NYT.com

Immigration Impact » Blog Archive » U.S. Supreme Court Considers “Collateral Consequences” for Immigrants in Criminal Cases

Immigration Impact » Blog Archive » U.S. Supreme Court Considers “Collateral Consequences” for Immigrants in Criminal Cases

Will the Supreme Court decide that an attorney giving a client the wrong advice on the immigration consequences of a criminal conviction is grounds for withdrawing a guilty plea?  That is what is at stake in the Padilla v. Kentucky case.

Here in New Hampshire -- I have had pretty good luck over the years in getting cases reopend when the client misunderstood the immigration consequences of his/her plea.  Unlike other New England States, NH has no statutory requirement or court rule that a defendant be warned of the possible immigration consequences of a conviction. 

However, a guilty plea does have to be made knowingly and voluntarily.  A New Hampshire lawyer (or judge for that mater) has no duty to inform a defendant about immigration consequences.  However, if the defendant convinces the judge that he/she only agreed to plead guilty to an offense because the attorney affirmatively told them that it would not result in deportation  - that may be grounds for vacating the conviction.