Does New York Provide Immigration-Safe Plea Deals for Noncitizens?

Immigrants in New York who face criminal charges often have to make difficult decisions about plea deals without fully understanding how their choice could impact their immigration status. New York courts don’t consistently notify noncitizen defendants when pleading guilty to a crime could lead to deportation or other immigration consequences. But new legislation aims to change that by requiring judges to warn defendants if a plea carries immigration risks.

This article looks at the complex intersection of criminal and immigration law. We’ll explain how even minor crimes or pretrial diversion programs create immigration problems for noncitizens. Then we’ll discuss New York’s efforts to pass a “Padilla advisement” law requiring judges to notify defendants when pleas may affect their immigration status.

How Plea Deals Impact Immigration Status

Under federal immigration law, many types of crimes can trigger deportation or make a noncitizen ineligible for certain immigration benefits. This includes some misdemeanors and even non-criminal offenses resolved through pretrial diversion programs.

For example, a noncitizen who pleads guilty to petty larceny can be deportable as an “aggravated felon” under immigration law. Drug offenses and crimes involving “moral turpitude” also often lead to immigration consequences. Even a marijuana violation plea can make a noncitizen inadmissible to the U.S. or unable to become a citizen.

Immigration officials may use any conviction as evidence the noncitizen lacks “good moral character.” This can prevent them from naturalizing or obtaining other immigration benefits like asylum. And for lawful permanent residents, even one conviction can mean losing their green card if it occurred within 5 years of entering the U.S.

Pretrial diversion programs also create risks. These programs allow defendants to avoid conviction by completing rehab, community service, or other requirements. But for immigration purposes, diversion agreements still count as evidence of unlawful conduct that can be used against the noncitizen.

The bottom line is any plea deal or pretrial program should be evaluated for potential immigration consequences before a noncitizen accepts it. But right now in New York, many immigrants take pleas without understanding these risks.

The Duty to Advise Under Padilla v. Kentucky

In 2010, the Supreme Court held in Padilla v. Kentucky that defense attorneys must advise noncitizen clients when pleas carry a risk of deportation. The Court ruled this is part of an attorney’s duty to provide effective assistance of counsel under the 6th Amendment.

Padilla was a landmark decision – before this, lawyers often failed to warn noncitizen defendants about immigration risks. But while Padilla requires defense attorneys to investigate and explain immigration consequences, it doesn’t require judges to provide these warnings.

So in New York today, noncitizen defendants still plead guilty without being notified on the record by the court about potential immigration impacts. Advocates say this leads to unfair and unjust results.

New York Legislation: The Court Notifications Bill

To address this issue, New York lawmakers have proposed legislation often called the “Padilla advisement bill.” This bill would:

• Require judges to notify noncitizen defendants during plea allocutions if their plea may carry immigration consequences
• Mandate specific language the court must use in these warnings
• Require the court to include the advisement on the record so the noncitizen has written proof they were notified

Several versions of this bill have been introduced in the New York legislature. In 2022, the Court Notifications Bill passed the State Assembly but stalled in the Senate.

Supporters plan to reintroduce the legislation in 2023. They say court warnings are a simple way to ensure immigrants understand potential immigration consequences before accepting any plea deal.

Arguments For Court Notifications

Advocates make several arguments in favor of requiring judge warnings:

• Ensures defendants are making informed, voluntary pleas as required by due process
• Prevents deportation and family separation caused by unknowing pleas
• Avoids unnecessary detention and litigation to reopen pleas
• Puts responsibility on the court, not just defense attorneys, to warn about consequences
• Mirrors other required advisements like sex offender registration consequences
• Provides a clear record the noncitizen was notified for immigration proceedings

Supporters say the bill reflects basic principles of justice and fairness. All defendants should understand critical consequences before admitting guilt, especially when it could lead to deportation.

Concerns About Court Notifications

Opponents raise several counterarguments against mandating judicial warnings:

• Overburdens courts and judges
• Defense attorneys are better suited to advise about immigration issues
• Risks unintentionally providing immigration advice the court is unqualified to give
• May discourage pleas by alarming defendants about immigration risks

Critics argue Padilla already requires defense attorneys to investigate and explain immigration consequences. So court notifications are unnecessary and could disrupt plea negotiations.

Other States’ Experiences with Padilla Advisements

Currently, 25 states have some form of required Padilla advisement for criminal courts. These laws vary in scope – some mandate warnings for all defendants while others limit them to certain serious offenses.

For example, California passed a law in 2016 requiring judges to advise defendants only for offenses with mandatory immigration consequences. Advocates in California continue pushing for more comprehensive requirements.

Meanwhile, Washington State approved broad legislation in 2021 mandating warnings for all criminal offenses. The law also requires providing advisement forms and maintaining records.

Early data from California and other states shows Padilla advisements have concrete benefits. Judges are warning thousands of defendants, leading to better-informed pleas and fewer immigration-related motions to reopen cases.

The Outlook in New York

Passing a Padilla advisement law in New York won’t be easy despite support from advocacy groups. Defense attorneys and judges remain concerned about over-burdening courts and disrupting plea bargaining.

But supporters will continue pushing the bill as a simple, practical way to avoid unjust deportations. They argue basic fairness requires courts – not just lawyers – to notify defendants if pleas may impact their families and futures.

For now, noncitizen defendants can’t rely on receiving warnings before pleading guilty. So it remains critical to consult closely with a defense attorney knowledgeable in immigration law. Understanding the potential immigration risks is essential when deciding whether to accept any plea deal.