Defendants deserve immigration advice, court rules


The Supreme Court confronted in two cases Wednesday the stiff federal law that requires deporting noncitizens if they are convicted of an “aggravated felony,” even those who have lived here legally for decades.

By a 7-2 vote, they blocked the deportation of a Vietnam veteran from Kentucky who had pleaded guilty to trafficking marijuana because his lawyer told him erroneously he “did not have to worry about his immigration status” because he had lived legally in the United States for 40 years.

And the justices heard arguments on whether a Texas man could be deported to Mexico for possessing one tablet of the anti-anxiety drug Xanax after he pleaded guilty the year before to having less than two ounces of marijuana. Both offenses were misdemeanors.

In the Kentucky case, the justices stopped the deportation of Jose Padilla, a native of Honduras, ruling that he deserved a new hearing and possibly a new trial because of the faulty legal advice. The Constitution ensures “that no criminal defendant -- whether a citizen or not -- is left to the mercies of incompetent counsel,” Justice John Paul Stevens said.

In his opinion, Stevens emphasized the stark change in immigration law since 1996. Before, judges could intervene on behalf of an immigrant who had family, a job and other ties in this country.

“The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes” that can be an aggravated felony, Stevens said. For that reason, a lawyer “must inform” his or her client about the risk of deportation before entering a guilty plea, he said.

Justices Antonin Scalia and Clarence Thomas dissented, saying the Constitution does not require criminal lawyers to give advice on immigration matters.

Padilla’s case will now return to Kentucky for trial on the marijuana charges. If he is convicted, he will be deported, his lawyer said.

The defendant in the Xanax case, Jose Angel Carachuri-Rosendo, was born in Mexico and came to Texas with his parents when he was 3. He has lived legally in the United States since 1993. He served 20 days in jail for the marijuana conviction but was given no time for possession of the Xanax.

In 2006, however, federal authorities told him he would be deported because of the two drug crimes.

Defending the stiff interpretation of the law, Nicole Saharsky, an assistant to the solicitor general, said, “Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens.” Because a second minor drug crime could be punished as a felony in some states, it qualifies as an aggravated felony under federal law, she argued.

She ran into questioning from Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, but it was not clear whether a majority of the justices was inclined to reject the deportation ruling.

Ginsburg said the result seemed to be “absurd . . . if you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say, ‘Never, ever darken our door again’ because of one marijuana cigarette and one Xan-something pill.”