The American Immigration Council reported that the highest court in New York ruled on Tuesday that due process compels state court judges to warn defendants in criminal proceedings who are not U.S. citizens that pleading guilty to a felony may result in their deportation. The court noted that “deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue…Due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.”
The court partially overruled the 1995 case of People v. Ford , which held that a court’s failure to advise a defendant of the possibility of deportation never affects the validity of a guilty plea. When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, many more minor crimes became grounds for automatic deportation. Moreover, Congress largely stripped prosecutors of the discretionary ability to prevent the deportation of noncitizens who pled guilty to such crimes, making deportation “practically inevitable,” regardless of whether people have been here legally for many years, have U.S. citizen family members or children, or make significant contributions to their communities.
Many immigrants, both documented and undocumented, who are deported due to criminal convictions have pled guilty, often without advice about the immigration consequences or any legal representation at all. Automatic deportation may result, even for non-violent offenses that are classified as misdemeanors under state law. According to Human Rights Watch, 77 percent of lawfully present noncitizens deported due to criminal convictions between 1997 and 2007 had not used violence. As reported by the Washington Post earlier this year, Luis Bladilir Lopez, a 19 year old unrepresented immigrant, pled guilty to a misdemeanor marijuana charge, resulting in his deportation. Courts have begun to recognize that deportation is an exceptionally harsh consequence of pleading guilty to relatively minor crimes, and has become so common and unavoidable that defendants must be warned by both judges and attorneys.
The decision of New York’s highest court builds on the case of Padilla v. Kentucky, in which the Supreme Court decided that, due to the increasing harshness and inflexibility of immigration law, criminal defense lawyers had an obligation to warn their clients of the possibility of deportation when advising them whether to plead guilty. “While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation,”stated Justice Stevens. “The ‘drastic measure’ of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.”
Since the passage of IIRIRA, the focus of our immigration laws has been on deportation, with record numbers of deportations reaching 400,000 per year as of 2012. The total number of deportations under the Obama administration will reach a total of 2 million by the end of this year. Noncitizens, whether documented or not, are entitled to be warned of what Justice Stevens in Padilla called the severe punishment of “banishment or exile” before they plead guilty to crimes that will lead to automatic deportation.