On March 31, 2010, the US Supreme Court issued the opinion in Padilla v. Kentucky, placing a duty upon defense counsel to inform noncitizen clients of the negative immigration consequences of pending criminal charges before pleading the clients out to those charges.
Jose Padilla, a native of Honduras, was a lawful permanent resident of the United States for more than 40 years. During that time, Padilla served with honor as a member of the U. S. Armed Forces during the Vietnam War. Recently, he was facing deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. During plea negotiations in the case, Padilla’s attorney not only failed to advise him of the possibility of deportation prior to his entering the plea, but also told him that he “‘did not have to worry about immigration status since he had been in the country so long.” This advise, however, was flat-out wrong.
The Supreme Court held that the incorrect advise constituted ineffective assistance of counsel during the plea process:
The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.
Unfortunately, this type of situation happens all too often. Many criminal defense attorneys are not schooled in the nexus between immigration law and criminal law. At Bell Folsom, P.A., both of our partners have received training in the immigration consequences of criminal convictions, and they continue to stay abreast of new developments in this area of the law.
If you are a noncitizen that is facing criminal charges, contact Bell Folsom, P.A. immediately. We will help you navigate the criminal justice system without turning a blind eye to how the charges will affect your immigration status.