Posted on

Courts must give deportation warning

SHERRYLYN CLARKE, [email protected]

Courts must give deportation warning

Social Share

NEW YORK (CMC) – New York’s highest court has ruled that trial judges must warn Caribbean and other non-citizen defendants that they may be deported before allowing them to plead guilty to felony charges.
In a 5-2 majority ruling, the New York Court of Appeals recognized the “uniquely devastating deprivation of liberty” involved when an immigrant faces deportation from the United States.
The Appeals Court also recognized the obligation of lower courts in ensuring that Caribbean and other immigrants were fully knowledgeable of the consequences should they be convicted.
“The trial court must provide a short, straightforward statement on the record notifying the defendant that, in sum and substance, if the defendant is not a United States citizen, he or she may be deported upon a guilty plea,” wrote Justice Sheila Abdus-Salaam for the majority.
“Deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness,” she added.
The new ruling overturns a 1995 ruling that deportation is a “collateral consequence” of a guilty plea that judges need not warn immigrant defendants it might happen.
Justice Abdus-Salaam said times have changed since the mid-1990s, when about 37 000 Caribbean and other noncitizens were deported after criminal convictions.
She said an immigrant can hardly be said to have made a “voluntary and intelligent choice among the alternative courses of action open to the defendant”, unless he or she is informed by the court that deportation looms as a possible result of a guilty plea.
Justice Abdus-Salaam said the court was taking the “extraordinary” step in overturning in part the precedent that has long guided New York courts in this area, People vs Ford.
That case held that deportation is a “collateral consequence” of conviction and that the court’s failure to inform the defendant of that consequence never impacts the voluntariness of the plea.
The Court of Appeals accepted the arguments of the defendants in three cases, deciding that, with about 188 000 people deported from the United States annually following criminal convictions, deportation has become an “automatic consequence of a guilty plea for most non-citizen defendants”.
The Court of Appeals’ ruling involved three cases in which the defendants challenged their convictions on the grounds that they were unaware that deportation was a possibility when they pleaded guilty:
The New York Immigrant Defense Project had filed an amicus brief on behalf of the defendants.