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.