On November 19, 2013, New York’s highest Court, the Court of Appeals, in the case of People of the State of New York v Richard Diaz, ruled that in felony criminal cases involving immigrant defendants, defendants must be advised that they face removal (previously known as deportation) if they plead guilty to the charge (generally any sentence which potentially could result in the defendant being imprisoned for at least one year or more in jail will result in removal when the sentence is served). In the Diaz action, Richard Diaz was a legal permanent resident from the Dominican Republic. He was arrested in October of 2006 when he and another man in a taxicab were found to have a two pound brick of cocaine during the course of a traffic stop. Mr. Diaz pled guilty to a reduced drug possession charge in exchange for a 2½ year prison sentence, but apparently Mr. Diaz’ lawyer and the Court failed to advise him that a plea to the drug possession charge would result in his removal from the United States when his sentence was completed.
When Mr. Diaz was released from jail, he was immediately picked up by “ICE”, the Immigration and Customs Enforcement unit, to remove him from the United States. In a 5-2 decision, written for the majority by Judge Sheila Abdus-Salaam, the Court overturned a previous decision from 1995 in which it determined then that a defendant did not need to be warned of deportation because it was a “collateral consequence” of a guilty plea. Apparently, the driving factor behind the Court’s decision in Diaz was the changing times since the mid-1990’s, when 37,000 undocumented people were removed from the United States. Conversely, in 2011, 188,000 non-citizens were deported as the immigration laws have been more strictly enforced.
In her decision, Judge Abdus-Salaam stated that: “deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to defendant as a matter of fundamental fairness.” Judge Abdus-Salaam also mentioned that defendants who take plea bargains lose their jobs, and are sent back to countries they haven’t lived in since their birth, with no family or friends there.
The U.S. Supreme Court ruled in the Padilla v. Kentucky (2010) that defense lawyers have a duty to inform their clients that they face removal before they agree to plead guilty to a felony. In practice, often the lower Court judges ignore this directive and in my experience, many defense attorneys either are not aware of this consequence or simply forget to consider it. In Mr. Diaz’s case, along with two others that were decided contemporaneously, the Court ruled that the defendants have a right to withdraw their guilty pleas, as their due process rights were violated. However, Mr. Diaz and the other defendants must prove that if they had been warned of the possibility of removal, they would have insisted on going to trial and not pleading guilty. Chances are very strong that Mr. Diaz will claim that he would have gone to trial and he will be allowed to withdraw his guilty plea.