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Do Judges Have to Warn About Deportation?

24-Dec-2013

Westchester County is a community with a higher concentration of immigrants than in other areas of the state. More than 24% of the population in Westchester were born in another country, compared with 22% in the rest of the state. In light of this, criminal defense attorneys throughout Westchester County have taken note of a recent ruling from the New York State Court of Appeals. As reported by The New York Times , the appeals court issued a 5-to-2 decision to overturn a previous ruling that judges don't have to warn immigrant defendants of the possibility of deportation.

What the Appeals Court Decided

In 1995, the Court ruled that judges are not required to issue any warning about the risk of deportation, but with the recent ruling, they now must ensure that the defendant in a criminal case does understand that a conviction resulting from a guilty plea may expose the person to the threat of being removed by U.S. Immigration and Customs Enforcement. When an immigrant is charged with certain types of crimes, often referred to as "deportable offenses," a conviction in the case, whether at trial or through a plea bargain, may make the immigrant inadmissible and eligible for a removal action. The category of deportable offenses covers crimes including, but not limited to:

  • Aggravated felonies
  • Crimes of moral turpitude
  • Domestic violence
  • Terrorist activity
  • Certain types of drug offenses

In practical terms, virtually any type of criminal charge exposes an immigrant to the possibility of being selected for a removal action, and it is consequently of immense importance to hire a skilled criminal defense attorney to improve the chances of resolving the situation.

Immigrants Don't Always Get Fair Treatment in the Justice System

The vast majority of all criminal cases in the United States end in a conviction. In fact, it has been reported that 95% of all felony convictions are the result of a plea bargain, in which the defendant waives the right to trial, pleading guilty in exchange for some type of leniency such as a reduced sentence. Defendants are often intimidated into accepting a plea bargain by prosecutors who over-charge the crime, using the treat of a harsh sentence to cow the defendant into giving up. This circumstance can be especially severe in cases where the defendant is an immigrant who has limited familiarity with the criminal justice system and may not fully understand what is going on. How many people have been deported after pleading guilty without understanding the consequences of doing so?

Padilla v. Commonwealth of Kentucky

The recent ruling by the New York Court of Appeals provides additional legal safeguards to immigrants facing criminal charges by building on the foundation established by the Supreme Court in Padilla v. Commonwealth of Kentucky. In Padilla, the Court ruled that a defense attorney must advise an immigrant client of the risks of deportation following a conviction or guilty plea. Now, the judge is also required to take measures to warn the defendant. Commenting on the New York appeals court's ruling, Robert Schuster said:

I am always very careful to provide Padilla warnings to my clients. Even enrollment in judicial diversion or misdemeanor drug court can be viewed by federal authorities as pleading guilty to a deportable offense ‑ even if dismissal is on the horizon following successful treatment. It is crucial to inform your clients of dire collateral immigration consequences. This new ruling provides additional support but does not obviate an attorney's obligation to inform himself of collateral immigration consequences and communicate them to his client. I have often been retained by individuals who are now facing deportation as a result of their attorney failing to provide them with Padilla warnings. A motion must be made before the sentencing court for a retraction of their plea in these circumstances. These applications are difficult to prevail on and no one wants to be in the position of needing to succeed upon one in order to avoid deportation. I am glad for this new ruling, which really serves to increase the difficulty in prevailing upon such a motion while not substantially impacting the necessity for future motions on same. In my opinion, a defendant is far more likely to rely upon his attorney's advice than to hang upon the every word of a judge at the time of plea.

Criminal Defense Lawyer for Immigrants in Westchester County

With the recent ruling by the Court of Appeals, more immigrants facing criminal charges should have the information they need to weigh the risks versus the benefits of a plea bargain. Many will likely choose to exercise their right to trial in an effort to avoid a conviction and maintain their immigration status. Criminal defense attorney Robert Schuster has a proven track record in the courtrooms of Westchester County, with a success rate of 95% at trial, and he is ready to help you fight the charges you face and defend your eligibility to remain in the United States.