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Criminal Process and Procedure

Right to advice regarding immigration consequences of conviction

The Supreme Court’s landmark decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010)  represents a vindication of IDP’s work since its inception.  In Padilla, the Court held that in order to provide constitutionally effective assistance of counsel under the Sixth Amendment, criminal defense attorneys must advise their noncitizen clients regarding the immigration consequences of conviction.

IDP played a key role in putting together and coordinating the submission of an amicus curiae brief in the case on behalf of itself and fourteen other criminal justice and immigration nonprofits that informed the Court that those who represent and counsel immigrants accused of crimes accept this constitutional duty and do not consider it unduly burdensome.  IDP and the other amici were represented by Iris Bennett and Matthew Hersh of Jenner & Block LLP.

For guidance on the obligations of criminal defense counsel under Padilla, click here. For research and technical information on bringing a post-conviction relief claim under Padilla, click here.

Right to appeal

In an important victory for the rights of immigrants convicted of crimes, on October 25, 2011, New York’s highest court held in a pair of cases that the intermediate appeals courts abuse their discretion when they dismiss the criminal appeals of defendants who have been involuntarily deported.

In both People v. Ventura and People v. Gardner, Nos. 11-160, 11-161 (N.Y. Oct. 25, 2011), the defendants were deported while the appeals of their trial convictions were pending.  Although state law guarantees every defendant the right to appeal a criminal conviction to the intermediate court, those courts had been dismissing the appeals of deported defendants on the theory that the defendants were outside the jurisdiction of the court and therefore not available to obey the courts’ mandates.

Noting the “uniquely critical role in the fair administration of justice” that a first appeal plays in the criminal justice system, the high court held that immigrant defendants “have a[n even] greater need to avail themselves of the appellate process” than citizen defendants “in light of the tremendous ramifications of deportation,” and ruled that the intermediate courts must hear the appeals (whether or not the challenged conviction was the sole or primary cause of the defendant’s deportation).

IDP filed an amicus brief in both cases in partnership with the Post-Deportation Human Rights Project at Boston College.  Appellants Ventura and Gardner were represented by Appellate Advocates.  For news coverage of this landmark decision, click here.

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