Immigration warnings required during plea stage

As a result of the amendment made to Rule 11(b) in the Federal Rules of Criminal Procedure, which took effect in December 2012, federal judges are now required to make defendants aware of the potential consequences, including those as severe as removal, of accepting a plea of guilty or nolo contendere (no contest). Specifically, prior to sentencing, the Court must inform the defendant that if he is not a U.S. citizen, a conviction could result in the denial of citizenship, the denial of future admission to the U.S., or even removal.

The amendment to Rule 11(b) serves as an extension of the Supreme Court’s decision in Padilla v. Kentucky. 559 U.S. 356 (2010). In that case, the petitioner was faced with removal proceedings after pleading guilty to drug distribution charges, despite his being a Lawful Permanent Resident in the United States for over forty years. Padilla claimed that he had failed to be made aware of the possible consequence of removal before entering the plea and that his attorney had even urged him “not to worry about deportation since he had lived in this country for so long.” Id. at 356. Had he been made aware of the possibility of removal, Padilla alleged he would have gone to trial instead of entering the guilty plea in the first place. The Kentucky Supreme Court ultimately denied Padilla any post-conviction relief, stating the Sixth Amendment’s guarantee of “effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a ‘collateral’ consequence of his conviction.” Id. at 359-60. The Court ruled that any claims to relief would have been dependent upon whether Padilla had been prejudiced, a matter which was unaddressed. Id. at 360.

However, the Court did rule that a “constitutionally competent” counsel would have advised Padilla that a conviction of drug distribution would have put him at great risk of deportation. Id. at 361. The necessity of an attorney’s advice that a defendant is made entirely aware of the potential risk of deportation is now especially imperative, as federal immigration law has changed dramatically in the last ninety years to expand the range of deportable offenses. Now, under Rule 11(b), federal judges, in addition to attorneys, are also required to advise defendants of the possible consequences of conviction prior to accepting a plea. While some have opposed this expansion, the amendment was ultimately put into effect as a result of the recognition that removal specifically is “qualitatively different from the other collateral consequences that may follow from a guilty plea.” Federal Judges Required to Provide Immigration Warnings During Plea Stage, Bender’s Immigration Bulletin, Dec. 15, 2013 at 1451.

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