440 Motions and Immigration Law and Deportation
I am frequently asked whether a criminal conviction can be vacated using a motion under Criminal Procedure Law §440 where the client was unaware that their plea of guilty would result in deportation.
The issue of whether collateral consequences and deportation as a result of a plea of guilty to a crime, where an attorney does not inform the client of the immigration consequences of a plea of guilty, has recently been decided in the U.S. Supreme Court case called Padilla v. Kentucky.
The issue centers around the Sixth Amendment’s right to counsel and effective assistance of counsel. Whether an attorney is obligated to inform a client of immigration consequences, including deportation, when they plead guilty to a crime and whether the failure to inform the client of such immigration consequences constitutes ineffective assistance of counsel.
The U.S. Supreme Court ruled that failure to advise a client of the immigration consequences at a plea to a criminal charge falls below the objectively reasonable standard set out in Strickland and fulfills the first prong of the two-pronged test. However, the court declined to review the question of whether or not Padilla suffered prejudice because the question was not addressed in the lower court.
It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel. To satisfy this responsibility, we now hold that council must inform his or her client whether his plea carries a risk of deportation. Our long-standing Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.
The Supreme Court’s holding in this case has important consequences for those with immigration issues here in New York. The holding in Padilla v. Kentucky will be the basis for many Criminal Procedure Law §440 motions to be sure.
Whether the 440 motion to vacate a conviction will be successful will depend on whether ineffective assistance of counsel can be shown under both prongs of the test set out in Strickland v. Washington. That case set out a two prong test that requires a showing that an attorney’s performance fell below a reasonably objective standard and that the client suffered some prejudice because of this.
In order to assess whether the recent Supreme Court case Padilla v. Kentucky may effect your immigration status and whether you may be successful in vacating a conviction under CPL §440 please contact my office and I will be happy to meet with you to assess your case at no charge.