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September 1, 2010

"N.Y. Judge Vacates Deportation Plea Due to Changing Legal Landscape"

The title of this post is the headline of this piece in the New York Law Journal, which gets started this way:

A judge's warning that a defendant could be subject to deportation if he pleaded guilty to a misdemeanor did not alleviate the ineffectiveness of his counsel under a new standard expressed by the U.S. Supreme Court, the judge ruled in vacating his prior acceptance of the plea.

Brooklyn Acting Supreme Court Justice Joseph K. McKay observed that the U.S. Supreme Court's recent decision in Padilla v. Kentucky, 130 S. Ct. 1473, had altered the legal landscape since he had accepted Jose Garcia's plea 2 1/2 years ago.

"[W]here, as here, defendant is found in fact to have been misled by bad advice from a so-called retained specialist and by a lack of advice from his defense attorney, the Court's general warning will not automatically cure counsel's failure nor erase the consequent prejudice," McKay wrote in People v. Garcia, 4050-06.

September 1, 2010 at 02:53 PM | Permalink


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While I support this decision, the problems in this area are many. It is not always obvious what is and is not a deportable offense. Without extensive experience and a constant review of always changing BIA opinions in this matter, there is no way a criminal defense attorney can adequately advise a client on immigration consequences.

Posted by: rob | Sep 2, 2010 10:25:38 PM

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