From Restore Fairness blog - Guest Blogger: Seth Freed Wessler reposted from RaceWire blog

In a landmark decision, the Supreme Court today granted immigrants facing deportation new rights and protections. Many immigrants often plead guilty, unaware that this could trigger deportation from the U.S. The ruling in Padilla vs. Kentucky now requires defense attorneys to accurately advise their immigrant clients of the potential immigration consequences of pleading guilty to anything, thus ensuring that decisions to plead guilty will be more intelligent and well-informed.

Under current law, deportation is the result of a range of conviction, including minor ones like marijuana possession or shoplifting like a recent New York Times article illustrated. Jerry Lemaine, a Green Card holder, spent three years in detention fighting deportation to Haiti, a country he had left at three years old, because he was caught with a marijuana cigarette in his pocket and plead guilty on the advice of his public defender to a $100 fine. Like Jerry, many immigrants including those with legal status initiate their own deportation when they plead guilty in an attempt to secure a minimum punishment, not realizing the harsher consequence of exile for life. Immigration and Customs Enforcement, the agency responsible for deportations, announced it is well on it’s way to deporting a record 150,000 people because of such convictions.

As things stand, American law does not consider immigration offenses that result in deportation to be criminal offenses, but rather civil sanctions. Because of this, criminal procedural protections like due process and protections against double jeopardy are not relevant to deportation.

While today’s decision will do nothing to challenge this - the court is far too conservative for a ruling of that kind - “the decision,” says Bill Hing, an immigration law professor at UC Davis, “may have a very big impact.”

That’s because most criminal convictions come as the result of a plea bargain. According to Hing, “80 to 90 percent of criminal cases result in a plea bargain and that means that it’s probably the case that 80 to 90 percent of people who are deported are because of crimes probably resulting from plea bargains.” Now, all immigrants who enter plea agreements must be aware of the full range of possible consequences.

As of today, says Hing, “what an immigration lawyer will do when someone comes in the door is ask about how the plea was arrived at.”

The Supreme Court decision extends the sixth amendment right to council to immigrants facing criminal charges. "The severity of deportation - the equivalent of banishment or exile,” writes Justice John Stevens in the court’s opinion, “only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.”

Michelle Fei, Co-Director of the Immigrant Defense Project, explains, "even though most immigrants' primary concern is their ability to stay in the U.S., they often plead guilty, unaware that the result would be permanent exile from their families and communities." The Padilla decision will change this.

“What the court got right today is that deportation is such a dire consequence that more protections are really necessary,” says Fei.

The Supreme Court case centered around Mr. Jose Padilla, a Green Card holder, who lived in the U.S. for four decades and served in the U.S. military during the Vietnam War. Mr. Padilla's criminal defense attorney had misinformed him that pleading guilty to a drug charge would not lead to deportation, advice that was clearly wrong. In his appeal, Mr. Padilla argued that his defense attorney's misadvice about deportation consequences amounted to ineffective assistance of counsel. His appeal has changed many immigrants lives.

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Photo courtesy of dbking.