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Ineffective Counsel Defense May Not Always Work

If you are an immigrant in this country, we cannot stress enough the importance of having adequate counsel when facing a criminal matter. In 2010, under Padilla v. Kentucky, the United States Supreme Court declared that criminal defense attorneys had to counsel noncitizen clients about the deportation risks associated with a guilty plea. When the deportation risk is clear the criminal defense attorney must give correct advice. However, when the deportation risk is not clear then the criminal defense attorney need only make you aware that pending criminal charges may carry a risk of unfavorable immigration consequences. Failure to do so was a violation of an individual's Sixth Amendment right to be advised by counsel.

In the world of immigration law this decision was a huge win for immigrants because it created a pathway for them to reopen a case where they were misadvised. However, the Supreme Court decision in Padilla v. Kentucky has been slowly eroded by further court opinions.

This subject was recently addressed again in the matter of THE PEOPLE OF THE STATE OF ILLINOIS v. JOSUE VALDEZ. The basics of the case state that Mr. Valdez pled guilty to burglary in the circuit court. At the time his plea was entered, he was a citizen of the Dominican Republic and a resident alien based on his marriage to a U.S. citizen. The circuit court judge advised Mr. Valdez that his guilty plea may have adverse consequences on his immigration status. Mr. Valdez indicated he understood what the judge had stated and that he still wished to plead guilty. The case was later appealed for inadequate counsel and remanded for further proceedings based on a divided appellate court.

In the Illinois Supreme court opinion delivered by Justice Burke, the Court concluded that it was undisputed in this case that Mr. Valdez did not receive adequate legal advice from counsel. However, the court also concluded that Mr. Valdez was not prejudiced by his criminal defense attorney's failure because the circuit court gave him advisement in open court before he accepted a guilty plea. The Supreme Court agreed with the State's argument that counsel only has to advise their client that pleading guilty "may have" immigration consequences and even though Mr. Valdez did not receive that from his counsel, he was advised via the circuit court. The judgement of the circuit court was affirmed.

We believe that this is a misapplication of the law as announced by the US Supreme Court in Padilla v. Kentucky. Here, the Illinois Supreme Court has effectively indicated that the prejudice to an immigrant defendant caused by an attorney's misadvice can be cured by the court mentioning that deportation is possible during the plea.

Hopefully, future litigation will clear this error and stop the erosion the of the US Supreme Court's landmark decision in Padilla v. Kentucky.

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