Posted on April 1, 2010

Defendants Deserve Immigration Advice, Court Rules

David G. Savage, Los Angeles Times, March 31, 2010

The Supreme Court confronted in two cases Wednesday the stiff federal law that requires deporting noncitizens if they are convicted of an “aggravated felony,” even those who have lived here legally for decades.

By a 7-2 vote, they blocked the deportation of a Vietnam veteran from Kentucky who had pleaded guilty to trafficking marijuana because his lawyer told him erroneously he “did not have to worry about his immigration status” because he had lived legally in the United States for 40 years.

And the justices heard arguments on whether a Texas man could be deported to Mexico for possessing one tablet of the anti-anxiety drug Xanax after he pleaded guilty the year before to having less than two ounces of marijuana. Both offenses were misdemeanors.

In the Kentucky case, the justices stopped the deportation of Jose Padilla, a native of Honduras, ruling that he deserved a new hearing and possibly a new trial because of the faulty legal advice. The Constitution ensures “that no criminal defendant–whether a citizen or not–is left to the mercies of incompetent counsel,” Justice John Paul Stevens said.


“The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes” that can be an aggravated felony, Stevens said. For that reason, a lawyer “must inform” his or her client about the risk of deportation before entering a guilty plea, he said.

Justices Antonin Scalia and Clarence Thomas dissented, saying the Constitution does not require criminal lawyers to give advice on immigration matters.

Padilla’s case will now return to Kentucky for trial on the marijuana charges. If he is convicted, he will be deported, his lawyer said.