August 31, 2010
Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.
The lawyer was wrong.
Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer’s assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.
On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.
Writing on behalf of five members of the majority Justice John Paul Stevens said that “It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel.”
“Deportation is an integral part,” Stevens added, “indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes.”
While Padilla’s is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country. Immigrants facing very minor legal issues could see the benefits of the court’s decision. Padilla’s lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.
You don’t have to look far to find cases where proper counsel would have helped legal citizens.
In 2007 New Yorker Jerry Lemaine was caught by police with a single marijuana cigarette. The penalty is a $100 fine. But since Lemaine, a legal resident of the U.S. for 22 years, had entered a plea of guilty, he was taken to Texas where he sat behind bars for three years fighting deportation to Haiti.
NPR reported similar cases as minor as a woman stealing a bottle of medicine for a sick child and a man charged with a drug violation after money in his wallet contained small amounts of cocaine. The man in the second case decided to plead guilty in order to have the case expunged and avoid jail time but ended up having to fight deportation.
Even sadder is that these cases often involve people who have lived in the U.S. for virtually their entire lives. As Benita Jain, co-director of the Immigrants Right Project, pointed out, these cases involve adults who may not be able to “get a job, a house, or even order a meal” in the country of their birth.
Attorney Beth Worlin, who works for the American Immigration Council’s Legal Action Center felt the decision was a good start:
“Today’s decision also reminds us that ultimately, the increased criminalization of immigration law and lack of flexibility has resulted in harsh results. Congress should do its part to restore immigration judges’ discretion to consider the particular circumstances in a person’s case, thus affording each person facing deportation an individualized and fair opportunity to be heard.”