Padilla v. Kentucky

In PADILLA v. KENTUCKY, No. 08–651, 550 U.S. __ (March 31, 2010), the SCOTUS held: “when the deportation consequence is truly clear, as it was here, the duty [of that person’s attorney] to give correct advice is equally clear.” This language perhaps clears the way for collateral attacks by resident aliens (“green card holders”) who have been deported based on guilty pleas to crimes in which they were not advised such pleas would result in immediate deportation. A review of the opinion, [http://www.law.cornell.edu/supct/html/08-651.ZO.html] written by Justice Stevens, raises some interesting points:
• The Supreme Court seems to have at least partially discarded the familiar legal axiom that immigration consequences as a result of a guilty plea are a “collateral matter” and thus not the basis for post-conviction relief on the basis of ineffective assistance of counsel. The Padilla Court held: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” 550 U.S. at __, slip op. at 7-8.
• The Supreme Court seems to have laid out a bright-line rule – if a resident alien is charged with “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” (See 8 U. S. C. §1227(a)(2)(B)(i)), the defense attorney must advise that resident alien that a plea to such a charge will make him or her “eligible for deportation.” Certainly, as in Padilla, an attorney must refrain from making “false assurances that his conviction would not result in his removal from this country.” 550 U.S. at __, slip op. at 11.
• Relief may not be available on every occasion that a Defendant is not accurately advised of the immigration consequences of a particular plea. The Padilla court noted: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. 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. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” 550 U.S. at __, slip op. at 11-12.