By Roberta M. Gubbins
Legal News
“John Smith comes into your office, he had been at a party, got into an argument, hit his girlfriend, drove away. When he comes home the police arrest him. He is drunk, his license is suspended and the police find a bag of marijuana in his car. What are you looking for when you talk to the prosecutor?” asked Judge William G. Kelly as he started to discuss immigration consequences of a criminal conviction during a State Bar seminar last month.
Answers varied from careless driving to impaired, and deferred sentences where possible or plead to two or three and get the rest dismissed. Kelly then added the fact that the defendant was from Nova Scotia and in the United States with a green card. “Does that change things? Yes, it does.”
“One of the questions to be asked when a potential client comes in should be ‘Are you a U.S. citizen?’” said Judge Kelly. “What advice should you give to a non-U.S. citizen?”
Kelly noted that in People v Davidovich 463 Mich 446 (2000), “the court ruled that Immigration consequences of a plea are collateral matters that do not bear on whether the defendant’s plea was knowing and voluntary and the plea could not be withdrawn.
“For the same reason, a failure by counsel to give immigration advice does not render the lawyer’s representation constitutionally ineffective.”
This was the situation until Padilla v Kentucky No. 08-651, decided in March.
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