Annie Banerjee, an immigration lawyer based in the Houston area, offers insightful commentary about a crucial case involving a wronged Vietnam veteran.
The U.S. Supreme Court recently ruled in the case of Padilla v. Kentucky, deciding that if an immigrant is wrongly advised by his criminal defense attorney about the immigration consequences of a crime that the pertinent information is prejudiced and cannot serve as grounds for automatic deportation. Padilla, a Vietnam veteran, had been a permanent resident for more than 40 years. He was charged with drug distribution charges in Kentucky and his criminal defense attorney had instructed him to plead guilty, and that such a pleading would have no immigration consequences. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The attorney was wrong, and Padilla was sent for deportation. The March 31, 2010, Supreme Court decision reverses the Kentucky court and also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.
Annie Banerjee, an immigration lawyer based in the Houston area, found this judgment particularly intriguing. “What is astonishing is that this conservative Supreme Court recognized that deportation laws are extremely harsh now. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation. Immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes, “Banerjee explained.
According to Banerjee, criminal defense lawyers have an affirmative duty to learn and advise clients about the immigration consequences of a crime.
This Supreme Court decision was applauded by the American Immigration Council.
“The right to counsel is at the inner core of our criminal justice system,” concluded Banerjee.
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