Warnings About Potential Deportation Before Tendering Guilty Pleas

The issue of whether a criminal defendant has to be advised about the impact a criminal conviction may have on his status, as a non-citizen to be deported, has been a very salient one ever since the 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That law expanded the number of criminal offenses which could trigger a deportation.

In New Jersey, the State Supreme Court, almost five years ago, held that a criminal defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from “inaccurate information from counsel concerning the deportation consequences of his plea.” The Court focused on “false or misleading information” from counsel as establishing the violation of the defendant’s constitutional rights. State v. Nuñez-Valdéz, 200 N.J. 129 (2009). Accordingly, if a defendant who had pled guilty subsequently decides to challenge his own plea and get it reversed or overturned, he could, either on appeal or at some other level of post-conviction review, challenge the validity of the plea on the grounds that his attorney gave him false or misleading information about the plea’s effect on possible deportation.

A year later, the United Supreme Court, in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 175 L. Ed. 2d 284 (2010),  held that an attorney’s failure to advise a non-citizen client about the immigration risks attendant on pleading guilty constituted ineffective assistance of counsel. Ostensibly, in so far as non-citizen defendants facing criminal charges in New Jersey were concerned, the Padilla decision extended the rule in Nunez-Valdez to require counsel to give a discrete warning that a guilty plea may result in deportation.   

Prior to the Supreme Court rendering its decision in Padilla, a defendant named Kevin Williams pled guilty to third degree possession of a controlled substance and second degree possession of a controlled substance with the intent to distribute. A couple years later, he sought to have the plea overturned via post-conviction relief arguing he was not advised of the consequences that a guilty plea would have regarding deportation. The court in State v. Williams, No. A-1074-11T1 (NJ: Appellate Div. 2013) heard testimony from his counsel and the defendant himself and ruled that the defendant’s attorney had warned him of the possible deportation consequences and, for that and other reasons, would not overturn the conviction.

In other jurisdictions, several jurisdictions have found that the ruling in Padilla does not retroactively apply to guilty pleas tendered before the case’s issuance. But for all guilty pleas made in courts across the country after its effective date, the failure of the defense counsel to so advise their clients would be a basis for an improperly-tendered plea and could justify its reversal on the grounds that the omission constitutes ineffective assistance of counsel in violation of the defendant’s Sixth Amendment Right to Counsel.

At The Shulman Law Group, LLC our immigration lawyers have experience with those who are in the United States, and have been charged or convicted of a crime, and are subsequently placed in deportation or removal proceedings.  Our lawyers are constantly seeking to find creative solutions to our clients’ deportation problems by staying abreast of new laws and regulations in addition to federal court decisions affecting immigrants. We also vigorously analyze post-conviction remedies in criminal cases to create affirmative defenses from deportation and /or removal, or to allow aliens to qualify for deportation /removal discretionary waivers.