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Court considers 'ineffective counsel' as deportation defense

As most of us know, when a non-citizen pleads guilty to a crime, deportation could be a very real consequence. However, in March 2010, the United States Supreme Court held that this information is not obvious and needs to be revealed to non-citizen defendants by their lawyers.

The decision was based on a defendant's constitutional right to reasonably effective counsel. Essentially, non-citizen defendants have a right to know that they could be deported if they plead guilty to crimes, and if their lawyers fail to tell them it could qualify as ineffective counsel.

Since then, federal appeals courts throughout the nation have been split on whether the rule should apply retroactively to thousands of non-citizens who were not told by their lawyers that pleading guilty could mean deportation. Did they receive ineffective counsel too? Last week, that question was considered by the Supreme Court.

The case involved a Mexican citizen and lawful permanent U.S. resident who was trying to become a naturalized citizen in 2009. Citizenship was denied after the woman disclosed that she had pled guilty six years earlier for mail fraud. The government then decided to deport the woman.

The woman challenged the deportation saying that her lawyer in her criminal case never informed her that deportation could result from pleading guilty, which constituted ineffective counsel in light of the March 2010 Supreme Court decision.

However, a federal appeals court held that the March 2010 decision introduced a new constitutional rule of law, which under a 1989 Supreme Court decision does not apply retroactively.

The woman's attorney has challenged that holding, arguing that the March 2010 decision did not constitute a new rule of law, but instead just confirmed the longstanding requirement that defendants in criminal cases were entitled to reasonably effective counsel.

A decision in the case is not expected until June 2013, but it could offer a deportation defense to thousands of non-citizens.

Source: Reuters, "Supreme Court weighs expanded warnings on deportation risk," Jonathon Stempel, Nov. 1, 2012

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