Wednesday, November 20, 2013

NY's Highest Court Rules That Judges Must Inform Defendants of Possible Deportation as a Result of Criminal Guilty Pleas

Trial judges in New York must warn non-citizen defendants that they could be deported before accepting guilty pleas in felony cases, the state Court of Appeals has ruled. Defendants are entitled to be notified of such “a grave impact and frequent occurrence,” the Court of Appeals said. The majority cited increased deportations by immigration authorities under tougher US laws and enforcement policy.
Judge Sheila Abdus-Salaam rejected the argument that Immigration and Customs Enforcement (ICE) has considerable discretion in deciding whom to deport. The roughly 188,000 non-citizen convicts now deported annually, up from about 37,000 when the federal law was amended in 1996, “would probably beg to differ on the point, and rightly so."

"A majority of this Court, consisting of Chief Judge Lippman, Judges Graffeo, Read, Rivera and me, finds that deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea. We therefore hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony."

The decision was made in three separate cases where non-citizen defendants pleaded guilty to felonies without the court explaining that they could be deported.

This is a landmark decision which will have a broad impact on deportations in New York State. It goes further along the road paved by Padilla v Kentucky which requires that criminal defense counsel apprise their clients of the potential immigration consequences of a criminal conviction. Unfortunately, and likely due to misunderstandings about how the immigration laws work, the judges on the Court of Appeals have only held that the judge has a duty to apprise the defendant in felony matters. As any seasoned deportation defense practitioner knows, many misdemeanors can have consequences just as severe as felonies and indeed could be classified as "aggravated felonies" under the Immigration & Nationality Act (INA).

The cases are the People v. Juan Jose Peque, the People v. Robert Diaz and the People v. Michael Thomas, New York State Court of Appeals, Nos. 163-165.
The full decision is available here:

 I am sure we will be hearing a lot more about the impact of People v. Peque over the coming months. If you've pleaded guilty to, been convicted of, or charged with a New York felony and are facing potential deportation consequences, call my Buffalo Immigration Law Office immediately at (716) 418-7431 or visit the Buffalo Immigration Law firm of Matthew Borowski, Esq. at to discuss your removal defense options under this new case.


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