Risk Deportation for guilty pleaIn 2010, the Supreme Court concluded, after hearing the case of Padilla v. Commonwealth of Kentucky, it is proper for criminal defense attorneys to warn clients whom are not United States citizens that a guilty plea accompanies a high risk of deportation.

In other words, a defense attorney must tell non-citizen clients that they most likely would be deported if they are convicted of the crime proposed, if it is serious enough in nature. The case found that counsel must not remain silent when it comes to the consequences that could result for immigrants who are found guilty of a crime or crimes.

Background of Padilla v. Kentucky:

In 2001, Jose Padilla, a commercial truck driver, was stopped in Kentucky and arrested for transporting marijuana. Despite being born in Honduras in 1950, Padilla had been a lawful resident of the United States for 40 years at the time of his arrest.

He even served the US military during the Vietnam War. The criminal defense attorney representing Padilla advised a guilty plea, stating there was not a risk for deportation. Padilla was deported quickly after the plea bargain, however. Padilla fought back, though, filing a pro se motion for post-conviction relief due to the misinformation presented to him by his attorney. He claimed the conviction was a breach of the Sixth Amendment to the US Constitution.

The Sixth Amendment provides criminal defendants with the right to a fair trial. If a defendant’s counsel did poorly enough, he or she is able to argue his or her right was violated by ineffective counsel. Therefore, Padilla ultimately won the case at the Supreme Court level.

The Supreme Court’s Decision:

The Supreme Court agreed it now must be the duty of criminal defense attorneys to inform ailen clients of the risk of deportation after a guilty plea. The Supreme Court noted a criminal defense attorney should simply say a guilty plea may lead to deportation, if the law is unclear.

The risk of deportation is considered a collateral consequence. Today, Padilla v. Kentucky has impacted thousands of immigrants convicted of a deportable crime throughout the US, including California.

Making a Padilla Motion:

If you currently are facing deportation due to a guilty plea, don’t give up. You most likely were not represented by an attorney who explained the consequences of a guilty plea. A skilled California criminal defense attorney could still make a Padilla motion on your behalf to fight deportation.

Padilla v. Kentucky allows a non-citizen defendant to challenge their conviction if his or her counsel did not at least advise of possible deportation after a guilty plea. A knowledgeable defense attorney often is able to convince a court that a new trial should be started because the defendant’s previous counsel never discussed the possibility of deportation.

There are several ways to make a Padilla motion in California, including a motion to withdraw the plea; a direct appeal; or a petition for a habeas corpus . To find out more about what your options may be, contact my office for a free consultation.