Padilla Loopholes

29 Jan

Most immigrants are aware of the Supreme Court’s decision in Padilla v. Kentucky, which says criminal defense lawyers must properly advise their clients of the immigration consequences of any criminal plea. However, many defendants fall through the cracks. An article in yesterday’s Washington Post discusses the problem of defendants who are not appointed defense counsel in the first place and plead guilty on their own. Therefore, they are never explained the immigration consequences of that plea.

The article discusses the case of Luis Bladilir Lopez. He was charge with marijuana possession. The prosecutor said he would not seek jail time and therefore, under the rules of most criminal court, including those in Texas, he did not have the right to appointed counsel. After being told that he would only have to pay a fine and have a suspended license for 6 months, and no jail time, Luis entered a guilty plea. He was later picked up by ICE and deported, as drug offenses carry significant weight in deportation hearings, even if only misdemeanors.

The article can be found here: http://www.washingtonpost.com/local/crime/immigrants-take-guilty-pleas-without-lawyers-and-can-later-be-deported/2013/01/27/ec70be46-591a-11e2-88d0-c4cf65c3ad15_story.html

This is an important hole in the protections that Padilla is supposed to provide. Even if defense attorney are competent with immigration law and correctly advise their clients, this does not matter if defendants are not being appointed attorneys in the first place.

There are two solutions. First, prosecutors and judges need to take responsibility in these cases. They should appoint counsel in cases where they may be no jail time but there could be severe immigration consequences. Or, they could advise defendants of the immigration consequences before making any plea offer or accepting any plea.

For immigrants who are charged with a crime, the lesson is also clear. Just because you have not been appointed an attorney does not necessarily mean that you will not face immigration consequences if accept a plea with no jail time. The federal government uses its own criteria to determine deportability, which could happen even without jail time. Therefore, people in such situations must take the initiative and insist on an attorney before accepting any plea.

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One Response to “Padilla Loopholes”

  1. jj408464 November 11, 2013 at 11:59 pm #

    This is really informative post and I personally would like to appreciate the efforts. We are also dealing in same industry hence found this informative to add in our process also. Once again thanks for your post.

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