Defense Attorneys Must Advise Their Clients if They Will Face Deportation
In Taylor v. State, the SC Supreme Court held that a defendant is entitled to post-conviction relief when his attorney incorrectly advises him that he will not be deported as a result of his guilty plea.
Taylor was charged with possession with intent to distribute marijuana in Berkeley County. Taylor was a Jamaican citizen who lived in the Charleston area with his wife and two children who were all U.S. citizens.
Taylor’s criminal defense lawyer advised him to accept a plea offer of possession of more than one ounce of marijuana – a charge that carries a maximum penalty of six months in prison, and Taylor was sentenced to six months on probation.
Despite his attorney’s assurances that he would not be deported, Taylor was deported to Jamaica after his guilty plea.
When Does Defense Counsel Have to Advise as to Collateral Consequences of a Guilty Plea?
It’s not like this a new law – neither plea counsel nor the PCR judge in the lower court should have been confused about SC or federal law relating to a criminal defense attorney’s advice on immigration consequences.
SC Law on Collateral Consequences in General
Even before the U.S. Supreme Court weighed in on the issue, SC law said that, if an attorney gives advice on collateral consequences, it must be correct advice.
Although SC law did not specifically address deportation as a collateral consequence, SC cases held that, although attorneys did not have a duty to advise as to collateral consequences, their advice must be correct. This most often came up in the context of parole eligibility, whether an offense was violent or non-violent, and advice about the length of time a defendant would serve after their conviction.
Padilla v. Kentucky and Immigration Consequences
The U.S. Supreme Court changed this analysis in Padilla v. Kentucky, where they found that a criminal defense attorney has an obligation to advise a client if they are going to be deported based on their guilty plea conviction – whether the plea attorney doesn’t give any advice at all or gives bad advice, under Padilla the defendant is entitled to PCR if the conviction makes them eligible for deportation and they are not informed before their guilty plea.
When a client is clearly subject to removal under a U.S. immigration statute, plea counsel has a duty to tell their client.
If the deportation consequences of a particular plea are unclear or uncertain, “a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 369. However, where the terms of the relevant immigration statute are “succinct, clear, and explicit” in defining the removal consequence, counsel has an “equally clear” duty to give correct advice. Id. at 368–69.
Can I be Deported for a SC Marijuana Conviction?
Under federal immigration law, a non-citizen who is convicted of any drug offense, other than a one-time conviction for simple possession of marijuana less than 30 grams, is deportable.
At the PCR hearing, Taylor’s plea attorney went to great lengths to explain to the court why Padilla doesn’t matter, his client should have researched immigration law and figured it out on his own, and therefore his client should not be granted PCR. He repeatedly stated that immigration consequences don’t matter and have no effect on his determination of whether his client should plead or go to trial.
The PCR judge apparently agreed and denied PCR.
What is My Obligation as a Criminal Defense Attorney to a Non-Citizen Client?
The defense attorney can’t ignore the issue and just not give advice on immigration consequences. The defense lawyer also can’t say “maybe you’ll be deported,” when the immigration statute is clear that the offense will result in deportation.
Whenever a non-citizen client is considering a guilty plea, I have a duty to:
- Research the applicable immigration statutes and give correct advice as to the consequences; or
- Associate an immigration attorney who can research the applicable immigration statutes and give correct advice.
Although plea counsel in this case, by his own admission, didn’t bother to read Padilla and didn’t research the immigration consequences at all, it’s not too much to expect a trained attorney to be able to look up a federal statute, interpret its effect on their client, and give advice. Isn’t that what lawyers do?
SC Criminal Defense Lawyer in Charleston
Under state and federal law, criminal defense lawyers must correctly advise non-citizen clients as to the immigration consequences of a guilty plea. When our clients are facing possible deportation, we give them solid advice before they make any decisions about plea offers or trial in their case.
If you’ve been charged with a crime in the Charleston, SC area and are facing possible deportation, contact Charleston criminal defense attorney Grant B. Smaldone now by calling at (843) 808-2100 or by filling out our online contact form.