An alien who gets placed in removal proceedings due to criminal convictions used to have this recourse: lawyers obtain the transcript of the criminal court proceeding, check whether advisement (a warning that a guilty plea would lead to immigration consequences) was given by the judge (note that these are criminal court judges, not immigration judges), and if none was given file a Motion to Withdraw Guilty Plea and Vacate Conviction. If it gets withdrawn and the case vacated, if that was the only basis for removability, then the alien is good to go. Maybe removal proceedings can be terminated, maybe an alternative form of relief could be sought.
A lot of judges in recent years have started to be aware of this situation. So most of the time, advisement is given to these foreigners. Guilty pleas are sometimes still given despite the advisement, most of the time because barring any immigration consequences the specifics of which are unknown to foreigner at that time, the plea bargain seems to benefit the alien if he or she just pleads guilty – no jail time, probation is better than jail, the fine seems reasonable, community service is not that bad etc. So if a guilty plea was given despite the judge’s advisement, but the criminal defense attorney failed to advice the alien of the immigration consequences of his guilty plea, before this new Supreme Court case, there were limited ways to reopen the case.
In Padilla v. Kentucky, the Supreme Court on March 31, 2010 held that a criminal defense counsel must inform noncitizen clients whether the plea carries a risk of deportation. This is an important case for foreigners facing deportation due to criminal convictions, who originally plead guilty at their criminal proceedings but was not given immigration advisement by their criminal defense attorney. Several cases can get reopened on this basis.
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