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Supreme Court: Lawyers must advise immigrants of deportation threat

The US Supreme Court said that criminal defense lawyers are bound by the Constitution to let immigrant defendants who are not US citizens know when a guilty plea could lead to deportation.

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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.

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“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.