The United States Supreme Court just held that a criminal defense attorney must provide advice in this specialized area in those cases in which the law is “succinct and straightforward.”
The Court noted that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. Immigration reforms have expanded the class of deportable offenses and limited judges’ authority to avoid deportation’s harsh consequences. Deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Although attorneys have long been held responsible for advice on the “direct” consequences of a conviction rather than the “collateral” consequences of a conviction, the “collateral” consequence of deportation or inadmissibility from the United States can be far more serious than the “direct” consequence of jail or prison. The Court disregarded the distinction between collateral and direct consequences in the context of immigration advice. Criminal lawyers must therefore provide accurate advice to their clients on the immigration consequences of a conviction.
Defense attorneys remain free of a Constitutional obligation to provide advice in areas “collateral” to a criminal conviction and sentence. Even though criminal convictions can result in a civil commitment, civil forfeiture, the loss of the right to vote, loss of public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, loss of business or professional licenses and may also affect the ability to gain employment, the Supreme Court does not appear even close to requiring criminal defense attorneys to provide advice in these areas.
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