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Matthew Kolken on Deportation And Removal

Supreme Court set to hear arguments on Immigration Related Case

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The United States Supreme Court on October 13, 2009 is set to hear an immigration related case that was appealed from the Supreme Court of Kentucky by a lawful permanent resident of the lace w:st="on">United Stateslace> who plead guilty to a drug trafficking offense on reliance on his attorney's advice that the guilty plea would have no adverse immigration consequences.  See Padilla v. lace w:st="on">Kentuckylace> (08-651).  In reality any competent immigration lawyer should know that drug trafficking is unambiguously a deportable offense.  


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The issue before the Court is whether a lawyer who is representing a non-United States citizen in a criminal matter has the affirmative responsibility to properly advise their client of any adverse immigration consequences that may stem from entering a plea of guilty to a criminal charge. 


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Moreover, the Court must determine if a lawyer misadvises their client that there will be no adverse immigration consequences to a criminal conviction whether such misadvise constitutes ineffective assistance of counsel that would render the individual eligible for post-conviction relief.


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The ultimate issue before the Court extends beyond immigration law because the Court must determine what criminal defense attorneys are required to explain to their clients, and whether the explanation must include clarification as to what consequences will collaterally occur if they are convicted of a crime. 


 


The next question then arises if whether a criminal defense lawyer's failure to give proper advice will constitute ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution which mandates that an individual has a right to be provided with a lawyer in defense of a criminal charge.


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It will be very interesting to see what the Supreme Court does with this case, and especially interesting to see how Justice Sotomayor rules in her first immigration related case.


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I'll keep you posted.

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