Apr 07

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Did You Take An Immigration Safe Plea?

            If you were in criminal court between March 31, 2010 and December 1, 2013, it is highly likely that your plea in criminal court is not safe from immigration consequences and you may have the right to challenge it.  This is because the burden to inform the defendant of immigration consequences to his plea lied with defense counsel.   Now, however, effective December 1, 2013, the burden is shared by the Court, as required by the amendment to Rule 11 of the Federal Rules of Criminal Procedure.

The amendment was undertaken in light of Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which held that a defense attorney’s failure to advise the defendant concerning the risk of removal fell below the objective standard of reasonable professional assistance guaranteed by the Sixth Amendment.  That is right- as a non-U.S. citizen, YOU still have rights guaranteed to you by the U.S. Constitution.  Although Padilla speaks only to the duty of defense counsel, not the Court, to warn the defendant about immigration consequences, the judicial warning is supported by the  Supreme Court’s recognizition of those consequences.

How will the Court now protect you plea from immigration consequences based on this amendment?  By telling you directly before you enter a plea, “If you are convicted, and you are not a United States citizen, you may be removed from the United States, denied citizenship, and denied admission to the United States in the future.”  But, this warning follows many other warnings of direct consequences of a plea, which means that you may not be paying much attention.  Also, as my client once told me, his head was spinning when convicted that day, it was a very traumatic moment, such that he could not remember what the Judge told him.

So, if your head is also spinning on the day of your plea, how can you ensure that you do not plead guilty to an offense that carries severe immigration consequences?  After all, as the Supreme Court correctly pointed out in Padilla, “deportation is an integral part-indeed, sometimes the most important part- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  My best answer to this question is for you to hire a criminal attorney who is well versed in immigration law, or will proactively seek the advice of immigration counsel before entering your plea.

Hiring a defense attorney who can proactively work out a safe plea is essential, especially after this new amendment.  While it appears that the new amendment protects you, it is actually to your detriment.  Rather, the new amendment protects the government and the Court from a defendant’s motion to vacate the conviction.  This explains why the National Association of Criminal Defense Lawyers wanted the amendment to be withdrawn.  How many defendants will actually change their plea after hearing this warning from the Court?  None.  The warning is too general to speak to any one defendant about the specific immigration consequences of their plea.

Permanent link to this article: http://blog.weismanlawyers.com/did-you-take-an-immigration-safe-plea/

1 comment

  1. Susan

    very informative

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