The United States Supreme Court recently held that an attorney’s duty to provide effective assistance of counsel includes the responsibility of providing accurate advice about the immigration consequences of a guilty plea.  Providing incorrect legal advice to an immigrant about the deportation consequences of a guilty plea to drug trafficking charges constitutes ineffective assistance of counsel, and can serve as grounds for setting aside the conviction.   The case in question involved a guilty plea in the State of Kentucky, but the Supreme Court’s ruling applies to every state.  In Alabama, such a petition would be raised under Rule 32 of the Alabama Rules of Criminal Procedure, which provides Alabama’s method for asserting that a defendant received ineffective assistance of counsel.

In the case of Padilla v. Kentucky, the Supreme Court reviewed a request filed by Jose Padilla to set aside his guilty plea to drug trafficking charges.  Padilla was a citizen of Honduras, but had lived in the United States for over 40 years.  He even served in the United States military during the Vietnam War, and was living in the United States as a lawful permanent resident.  However, he never applied for American citizenship.

Padilla entered a guilty plea in Kentucky to charges of trafficking in marijuana in 2002, after the tractor trailer he was driving was found to contain a large amount of marijuana.  After pleading guilty, Padilla learned that one of the consequences of his guilty plea was that he would be deported.

Padilla filed a petition to set aside his guilty plea and conviction on the basis of ineffective assistance of counsel.  He asserted that his attorney erroneously advised him that his guilty plea would not cause him to be deported because he had lived in the United States for such a long time.  Padilla asserted that he would not have entered a guilty plea to the charge if he had known he would be deported, and that he would have fought the allegation at trial if his attorney had not given him incorrect advice.

The Kentucky Supreme Court ruled against Padilla, ruling that attorneys do not have a duty to advise their clients about the collateral consequences of a guilty plea.  The United States Supreme Court disagreed and overruled the lower court rulings, holding that holding that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

The Supreme Court ruled that a defendant was entitled to “the effective assistance of competent counsel” when making the decision over whether or not to enter a guilty plea to a criminal charge.  The Court stated they have never drawn a distinction between direct and collateral consequences when defining what constituted reasonable professional assistance, and noted  that “the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”  Acknowledging that immigration law is a complex legal specialty and that criminal defense lawyers are not necessarily expected to know all of the intricacies of that field of law, the Court stated that where the immigration consequences of a guilty plea are unclear an attorney can simply advise the defendant that a guilty plea “may carry a risk of adverse immigration consequences.”  However, where  the deportation consequences are clear (such as when a person is pleading guilty to a serious drug trafficking felony), the attorney must give correct advice.

A copy of the Supreme Court’s opinion in  United States v. Padilla can be downloaded by clicking the following link: 08-651.

If you entered a guilty plea based on incorrect advice given to you by your attorney, you may be able to assert a challenge to the conviction under Rule 32 of the Alabama Rules of Criminal Procedure.  If you would like to discuss your case with our office, please feel free to call us at (800) 737-3702 Extension 1 or fill out our Contact form to submit your inquiry online.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

Related articles by Zemanta

• Supreme Court says attorneys must advise immigrants of deportation consequences of guilty pleas (examiner.com)
• Court Requires Warning About Deportation Risk (nytimes.com)
• Using Rule 32 to set aside a guilty plea in Alabama (williampfeifer.com)

Seal of the United States District Court for the First Circuit

It appears her asylum claim was rejected not because of a lack of evidence, but because the judge did not consider her testimony credible. The reason? When she was pulled from the trunk of a car attempting to cross the border from Mexico into California, she did not allege religious persecution to the officers who initially interrogated her. The allegation of religious persecution was not made until later, when she sought to fight deportation.

I’ve written an article summarizing the case on Examiner.com, which can be read here. To read the court’s ruling in its entirety, click here.

This case in some ways serves as another example of what Professor James Duane discussed in a video posted in a recent blog post on this site, where he advises people to never talk to the police. To see the article and video, click here.

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”