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Does Failure to Advise on Deportation Risks Violate 6th Amendment?

We'd probably all agree that a lawyer who erroneously tells his client that accepting a guilty plea won't subject him to deportation (when it fact it would) is careless -- such counsel is negligent or even unethical when a lawyer renders advice on a topic outside of his or her expertise. But does the error rise to the level of ineffective assistance of counsel in violation of the Sixth Amendment? That's the question the in Padilla v. Commonwealth of Kentucky, which the Supreme Court yesterday agreed to hear, reports the Associated Press.

The facts from the Kentucky court's decision are fairly straightforward. Jose Padilla (no, not that Jose Padilla) is a Honduran national and Vietnam veteran who lived in the United States for decades but never became a citizen. Padilla was arrested and charged with several drug-related counts including trafficking five pounds of marijuana. Padilla's attorney negotiated a guilty plea under which all but the marijuana charge would be dismissed, and further, where Padilla would serve five years of an otherwise 10-year sentence. Padilla asked his attorney about the impact of the plea on his immigration status and his lawyer assured him that Padilla would not be deported since he had lived in the United States for so long. With that, Padilla accepted the plea. Two years later, believing that the government was preparing to deport him, Padilla filed a post-conviction motion to withdraw the plea, arguing that his attorney's erroneous advice constituted ineffective assistance of counsel in violation of the Sixth Amendment.

The majority rejected Padilla's argument, explaining that the lawyer's advice on immigration status was collateral to the criminal defense component of his representation, to which the Sixth Amendment right to effective assistance of counsel is attached. The minority disagreed, finding that whether collateral to Padilla's defense or not, the lawyer's erroneous advice, in response to an affirmative inquiry by the defendant, was inexcusable and justified a hearing on the ineffective assistance of counsel claim.

Courts have come to differing conclusions regarding immigrants' rights to effective assistance of counsel in cases where deportation is involved. Still, from my perspective the question seems simple. After all, if assistance of counsel isn't accurate, how can it be effective?

Posted by Carolyn Elefant on February 24, 2009 at 03:15 PM | Permalink | Comments (5)


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