U.S. Supreme Court Considers “Collateral Consequences” for Immigrants in Criminal Cases

Written by on October 13, 2009 in Enforcement, Immigration Courts with 7 Comments

Today, the U.S. Supreme Court heard arguments in a case posing the question: “If a criminal defense lawyer tells his or her client not to worry about the immigration consequences of pleading guilty, but that advice is wrong and in fact the client will be deported as a result of pleading guilty, can the client withdraw the plea?”

In this case, Padilla v. Kentucky, the Supreme Court of the State of Kentucky said no: even incorrect advice about the immigration result is not a sufficient reason to reopen a case because deportation (now known officially as “removal”) from the U.S. is a “collateral” consequence—that is, not something directly related to the criminal case. Kentucky’s lawyer argued today that the High Court should uphold that decision.

Some of the justices of the U.S. Supreme Court today seemed appropriately disturbed by this notion. However, many of the justices were concerned about “floodgates” and where to draw a line. If advice about immigration consequences is required before a defendant accepts a guilty plea rather than putting the government to its test in a trial, what about other negative consequences of a conviction? What about losing custody of children? Losing the right to vote? Do lawyers have to provide correct advice about these possibilities too?

But Padilla’s lawyer responded persuasively that most people would be more willing to give up the right to vote as part of a plea deal. The stakes in deportation can be much higher: deportation can mean banishment, persecution or death in the home country. Newest Justice Sonia Sotomayor questioned Kentucky’s lawyer on whether people might rather decide to remain in prison in this country longer if it meant not starving to death in their home country.

The need for correct advice from criminal defense lawyers is even more compelling because there is as yet no system of appointed lawyers to give immigration advice before people are deported. Thus, almost all defendants must rely only on their criminal defense lawyer for any legal advice about immigration law.

The Supreme Court knows how to draw lines and hold back floodgates. It should recognize that immigration consequences can be severe, sometimes even more severe than the criminal consequences of guilty pleas. The Court should hold that a defendant who pleads guilty after receiving incorrect immigration law advice from his or her defense lawyer is entitled to withdraw that plea.

Photo by kjd.


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  • As an attorney who practices both criminal and immigration law, I am amazed and appalled at the number of criminal attorneys who either negligently or willfully fail to get an Immigration consult before advising their clients. (some dont even ask if the client is an LPR)Its the lower level offenses that are the most dangerous. I have a guy (a cabby)who was convicted after a plea to possession of a narcotic, a misdemeanor. He will be deported if I am unsuccessful at overturning the plea, which he never should have taken. Shameful!!

  • Hoepfully the Court will recognize that pleading guilty, without understanding the immigration consequences of such a plea, is not a knowing and voluntary guilty plea, and should be vacated.

    Rick Moore
    Towson, MD

  • The likelihood is that the Court will hold deportation and immigration are civil in nature, the consequences are collateral and therefore do not trigger a right to effective assistance of counsel under the Sixth Amendment or advisement by the trial courts under the Fifth Amendment. Our best hope is that the Court will find that the mandatory detention provision deprives foreign nationals of a liberty interest and therefore in the Fifth Amendment’s Due Process Clause there is a right to notification of (at the very least) detention for pleading guilty.

  • There is no doubt that the State Bar rules that govern the practice of law in the different states clearly demand from their members to do not undertake representation of matter for which they are not competent or has not enough experience. There is previous case law allowing a defendant to withdraw the plea when the attorney has provided erroneous advise or has not advised his clients as to the effect and consequences of the plea.
    The issue is whether a person can request the state court to permit him/her to withdraw the plea after he is not longer under the custody of the state but under the custody of the federal system (immigration court/ICE).
    The court will allow a defendant to withdraw the plea if the withdrawal is prompt and before the expiration of his/her imposed probation. Once the probation period has expired, the court will not allow the plea to be withdrawn for immigration consequences are collateral and it is clearly and perfectly understood by all lawyers that it is. the message here is for lawyers who practice criminal law to understand that is different to represent criminal aliens than to represent Us Citizens, the strategies are different and the consequences of a plea can be more devastating than the time he could serve in jail or the time he will have to stay incarcerated awaiting for a good effective negotiation or trial if needed.
    Ineffective assistance of counsel is still a valid reason to withdraw a plea if done during the legally statutory time allowed by the law and case law, before probation ends, after that, there is no remedy, is a form of punishment for inaction and something similar tot he theory of the laches used in civil law.

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  • Christine Stewart

    Question…Would this same case law be taken into consideration for a person who was told by the Judge, to just plead guilty, you spent a night in jail that is enough for me, it will not appear on your record after 6 successful months of unsupervised probation”?

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