Do You Have the Right to Be Advised about Potential Deportation?
Author: Deportation Attorney Alena Shautsova
When you face criminal charges, authorities must inform you that you have the right to remain silent and that anything you say can be held against you in a court of law. They must tell you about your right to a lawyer and that if you cannot afford an attorney, the court will appoint counsel. However, when you are an immigrant, must authorities inform you that the crime they are charging you for could result in deportation?
The case called Padilla v. Kentucky, which went to the Supreme Court level, set a precedent for informing defendants about deportation. The Supreme Court heard the case in 2010 and ruled that an individual's Sixth Amendment Right guaranteed the right to effective counsel and that the guarantee also included advising the client about potential deportation. In the Padilla case, a California truck driver, Jose Padilla, asked his attorney whether agreeing to a plea would affect his status as a permanent resident. Padilla had lived in the United States for close to 40 years, served in the army during the Vietnam War and at that time faced marijuana trafficking charges. The lawyer advised him that he did not need to worry about deportation because of the length of time he had lived within the United States. However, Padilla’s plea was to an aggravated felony. Under immigration laws, aggravated felony convictions can lead to deportation. While a lower Kentucky court decided that lawyers only had to advise about direct and not indirect consequences, the Supreme Court disagreed. Two Supreme Court justices essentially agreed with the other Supreme Court justices in the final ruling but noted that the lawyer should have advised Padilla to consult an immigration attorney. The justices rendered a seven to two decision that advisement of the risk of deportation was a Sixth Amendment right.
If you face criminal charges, find out whether deportation is a potential penalty by obtaining legal help from a New York deportation lawyer.