by School of Government Immigration Law Specialist Sejal Zota Is defense counsel constitutionally obligated to inform a noncitizen criminal defendant whether his guilty plea carries a risk of deportation? Yesterday, the United States Supreme Court said yes in a case called Padilla v. Kentucky. In Padilla, the petitioner—a lawful permanent resident (green card holder) for over 40 years and Vietnam veteran—faced drug-distribution charges in a Kentucky trial court. His attorney advised him to plead guilty in exchange for a lighter sentence and not “to worry about [deportation] since he had been in the country so long.” Padilla took this advice. When he learned that his lawyer’s immigration advice was wrong and he would face deportation for his conviction, he sought to overturn it by arguing that he would have gone to trial but for counsel’s incorrect advice. The Supreme Court of Kentucky rejected his claim, holding that advice about deportation is a “collateral consequence” of conviction, and outside the scope of representation required by the Sixth Amendment. Holding that deportation is an integral part of the penalty that may be imposed on noncitizen criminal defendants, the United States Supreme Court reversed. The Court found that the protections of Strickland v. Washington, 466 U.S. 688 (1984)—which entitle criminal defendants to effective assistance of counsel before deciding to plead guilty—apply to advice regarding deportation. The Court also found the Kentucky court’s distinction between direct and collateral consequences was beside the point. In evaluating Padilla’s ineffectiveness claim, the Court found that counsel’s representation fell [...]
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