Sunday, October 18, 2009

Supreme Court Watch: Oral Argument heard last week in Immigration misadvice case

For those of you out there handling cases in which people might get deported or illegal reentry cases, keep your eyes on Padilla v. Commonwealth of Kentucky. The United States Supreme Court heard oral argument last week on this important case that has the potential to have significant ramifications. The issue presented is whether the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? If the Court were to decide that affirmative misadvice by an attorney regarding immigration consequences would entitled a person to challenge a prior conviction, that will raise significant issues for many people who pled guilty only to find themselves deported by surprise. For full briefing and links to oral argument, check Scotuswiki.

Of course, ideally the criminal defense attorneys out there dealing with cases with immigration consequences are careful not to misadvice to begin with. Good investigation plays a role in this as well by obtaining the proper records and being advised of a client's immigration status as early as possible in the case. Depending on the ruling, there could be a few habeas corpus petitions coming to a courtroom near you.

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