Supreme Court Protects Immigrant Due Process Rights

The Supreme Court today granted immigrants facing detention new rights and protections. The ruling in Padilla v. Kentucky requires defense attorneys to accurately advise their non-citizen clients of the potential immigration consequences of pleading guilty to a crime.

Under current law, deportation is the mandatory result of many criminal convictions, including minor ones like marijuana possession or shoplifting. Unknowingly, many immigrants, even green card holders, initiate their own deportation when they plead guilty in an attempt to secure a minimum punishment. Immigration and Customs Enforcement announced it is well on it’s way to deporting a record 150,000 people because of a conviction.

As things stand, American law does not consider deportation to be a punishment, but rather a civil sanction. As a result, the law does not consider deporting a person after they serve a criminal sentence to be double jeopardy.

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, “eighty 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 because of crimes probably also resulted from a plea bargain.” Now, all immigrants who enter a plea agreement 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 counsel 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. 

[Story originally posted March 31, 2010 and reposted at New America Media April 1, 2010.]