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Judges must warn of deportation in the event of guilty plea

In a previous post, we talked about how certain laws enacted in the late 20th century, intended to deal with immigrant crime, have led to denying immigrants the due process protections guaranteed to all people within the jurisdiction of the United States.

In the mid-1990s, around 37,000 immigrants were deported as a result of criminal convictions, but the number shot up to almost 200,000 by 2011, when increased enforcement of immigration laws led to deportation becoming a "collateral consequence." The New York Court of Appeals had ruled in 1995 that judges needn't bother with notifying foreign defendants that a guilty plea, although generally resulting in shorter sentences for convictions, could also get the defendant thrown out of the U.S.

Of course, the toll this took, not only on defendants, but on their families and communities, was tremendous. Deported immigrant convicts lost their jobs, got cut off from their families and were forced to return to countries where they had few ties and dim prospects.

But the 1995 ruling was overturned on Nov. 19, when the Court of Appeals ruled that New York judges must warn noncitizen defendants of the possibility of deportation should they plead guilty to felony charges. The majority conclusion was that such warnings were "a matter of fundamental fairness." The decision was made in response to three cases in which defendants were not warned about deportation. In the case of one man, the court also ruled that while he had the right to move to withdraw his guilty plea, unlike with other violations of due process, such a motion would not automatically be granted. Warning immigrant defendants of possible deportation is already required in more than 20 states. Although it had already been on the books since the 1990s in New York, judges suffered no consequences if they failed to follow it.

This latest ruling is welcome news in that it returns some protection to immigrants. However, laws protecting immigrants' rights are subject to change and are often ignored without consequence. It's important for immigrants to be able to get advice about their options, in order to understand the legal implications of their choices.

Source:, "Judges must warn about deportation, New York appeals court rules" James C. McKinley Jr., Nov. 19, 2013

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