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Drug Cases and Advisement of Immigration Consequences by Defense Counsel


In 2010, the case of Kentucky v. Padilla, the United States Supreme Court held that criminal defense attorneys are required to advise defendants of the potential immigration consequences criminal convictions may carry. Criminal defense attorneys routinely advise defendants to take plea offers without first researching the immigration consequences non-citizens will have once convicted. Unfortunately, as soon as a permanent resident or other non-citizen pleads guilty to most felonies and certain misdemeanors, the defendant gets placed in removal proceedings. Most people assume that only drug trafficking offenses will bring immigration problems. However, petty crimes such as possession of marijuana for personal use may place a non-citizen in removal proceedings.

After 2010, any defendant that entered into a plea offer without counsel advising of the immigration consequences may petition for post-conviction relief. However, defendants that plead guilty before 2010 may not have this form of relief yet. Currently, the states' are split on whether or not to apply the Padilla decision retroactively. The current rule in Arizona is that defendants that pled guilty before the Padilla decision will not qualify for post-conviction relief. However, the United States Supreme Court may soon change that. On April 30, 2012, in the case of Chaidez v. U.S., the U.S. Supreme Court decided to address whether or not the Padilla decision should also apply to defendants that plead guilty before 2010. The Supreme Court is expected to make a decision sometime in early 2013.

If the Court rules that Padilla should apply retroactively, defendants in Arizona and all other states, who are now facing immigration issues because the criminal defense attorney did not warn about potential immigration consequences before entering a guilty plea, may apply for post-conviction relief. If you or a loved one plead guilty to a drug crime or any other type of offense and are now facing immigration consequences, please call MayesTelles PLLC.

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