On November 19th, in People v. Peque, the highest court in NY held that due process requires that judges warn defendants of possible deportation as a result of felony guilty pleas. The due process analysis is wonderful, and worth a read.
The problem with the decision is the Court’s articulation of a remedy, or lack thereof. The Court ordered a remand to the trial court for the defendant to file a motion to vacate which, if facially sufficient, will result in a hearing at which the defendant must establish prejudice – “a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation.” The non-exhaustive list of factors are virtually identical to those considered in the Padilla prejudice determination – the favorable nature of the plea, the consequences of conviction after trial, the strength of the People’s case, ties to the US, and any advice from counsel about deportation.
There is a thoughtful dissent by Chief Judge Lippman in which he chides the majority for creating a right without a remedy, stating that the decision “telescopes” due process and Padilla claims. Judge Lippman asserts that automatic vacatur, as argued forcefully in IDP’s amicus brief, is the only logical remedy.
It is unclear how useful this decision will be to individual defendants; the systemic impact also remains to be seen. The risk of advancing such a due process claim, from a systemic perspective, is the potential for courts to conflate the doctrines governing claims brought under the 5th and 6th Amendments. Immigrant defendants are typically much better served by Padilla’s requirement of individualized advice from defense counsel during the course of plea negotiations than by a court notification formally issued at the plea colloquy (too little, too late). Some courts have deemed a court notification of immigration consequences to substitute for the advice required by Padilla, although there are some great decisions that go the other way. For in-depth arguments on this issue, check out IDP’s amicus brief in People v. Lambert.