Court to consider change for warning non-citizen criminal defendants of immigration consequences

Trial judges in criminal cases would be required to ask whether noncitizen defendants have discussed with their attorneys the immigration consequences of pleading guilty or no contest, under one version of a proposed amendment of the criminal procedure rules. This administrative matter (ADM File No. 2010-16) proposes two alternative amendments, which are on the agenda of the Michigan Supreme Court's Wednesday, Jan. 26, public administrative hearing. Version A of the proposed change states that "if the defendant is not a citizen of the United States, [the judge must] ask the defendant's lawyer and the defendant whether they have discussed the possible risk of deportation that may be caused by the conviction. If it appears to the court that no such discussion has occurred, the court may not accept the defendant's plea until the deficiency is corrected." Version B would require judges to "advise the defendant who offers a plea of guilty or nolo contendere that such a plea by a noncitizen may result in deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States." On the defendant's request, "the court shall allow the defendant a reasonable amount of additional time to consider the appropriateness of the plea in light of the advisement." The Michigan Supreme Court began its consideration of the proposed amendments, which would revise Michigan Court Rules 6.302 and 6.610 (under Alternative B, but would revise only 6.302 under Alternative A), because of a March 31, 2010 United States Supreme Court decision, Padilla v Kentucky, 559 US ___; 130 S Ct 1473; 176 L Ed 2d 284 (2010). Jose Padilla, a legal permanent resident of the United States, argued that he was denied effective assistance of counsel in a criminal case when his lawyer assured him that his guilty plea and five-year prison sentence would not affect his immigration status. In fact, the guilty plea triggered a mandatory deportation to Padilla's country of origin, Honduras, to take effect after Padilla served his prison term. In a majority opinion written by Justice John Paul Stevens, the U.S. Supreme Court held that "counsel must inform her client whether a plea carries the risk of deportation." Noting that statutory changes over the past two decades have made deportation mandatory for a wide variety of crimes, Stevens said that, if a simple reading of the statute would have told the lawyer that her client would face certain deportation, failing to provide that information denies the defendant effective assistance of counsel. In less clear cases, the lawyer must still advise the defendant that the defendant's immigration status could be in jeopardy, Stevens stated. The Michigan Supreme Court periodically holds administrative hearings to allow interested persons to comment on proposed court rule changes and other administrative matters on the court's agenda. Persons who wish to address the court regarding agenda items will be allotted three minutes each to present their views, after which the speakers may be questioned by the Justices. To reserve a place on the agenda, please contact the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, 48909, or by e-mail at MSC_clerk@courts.mi.gov, no later than Monday, Jan. 24. Requests to speak should include the ADM file numbers for the agenda items the speaker wishes to discuss. The Jan. 26 hearing will be held in the Supreme Court courtroom on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa Street in Lansing, and will begin at 9:30 a.m. The court's public administrative conference will follow the hearing. Proposed or recently-adopted rules may be viewed online at http://www.courts.michigan.gov/supremecourt/Resources/Administrative/index.htm#proposed. Administrative hearing agendas may be viewed online at http://www.courts.michigan.gov/supremecourt/Resources/Administrative/AdminConf.htm. Published: Mon, Jan 24, 2011

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