A Judge’s Duty to Warn About Deportation

From the New York Times:

he combination of harsh immigration laws and stricter enforcement has made deportation the likely consequence when criminal defendants who are not American citizens plead guilty to a felony offense. Recognizing that “uniquely devastating deprivation of liberty,” New York’s highest court last month correctly held that due process requires state judges to warn noncitizen defendants that a guilty plea could lead to deportation.

The decision by the State Court of Appeals builds on a ruling by the United States Supreme Court in 2010 that a lawyer had a constitutional duty to warn a defendant that a guilty plea could result in deportation. That ruling also held that a client whose lawyer had not issued such a warning would have a claim for ineffective counsel under the Sixth Amendment.

The New York ruling focused on the obligations of judges. Writing for a 5-2 majority, Judge Sheila Abdus-Salaam said trial judges have an independent duty to ensure that a guilty plea is knowing, intelligent and voluntary, and that informing a defendant of the deportation risk is “a matter of fundamental fairness.”

Like some 20 other states, New York has a law requiring judges to issue such warnings, but it has frequently been overlooked, according to immigration defense lawyers. Two Court of Appeals judges — Chief Judge Jonathan Lippman and Judge Jenny Rivera — argued that a defendant should have an automatic right to withdraw a guilty plea in the absence of a warning. But the court put the burden on defendants to show in a post-conviction motion that they would have insisted on going to trial if they had been advised of the deportation risk.

While the court was right on the principle, it failed on the remedy. The right response is to void pleas in such cases automatically. New York needs a law that does that.