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Justices of US Supreme Court provide clarity — but no relief — for immigration defendants

A decision from the U.S. Supreme Court that a seminal Sixth Amendment rights case is not retroactive has provided clarity for attorneys while dashing the hopes of thousands of defendants.

In 2010, the justices held that criminal defense attorneys are required under the Sixth Amendment to warn non-citizen clients if a guilty plea carries a risk of deportation. (Padilla v. Kentucky, 130 S.Ct. 1473).

But in the three years since, lower courts have split over whether the ruling constituted a new rule of law and could be applied retroactively, leaving lawyers and their clients facing an uncertain landscape.

The Supreme Court granted certiorari last April in Chaidez v. U.S. and heard oral argument last November.

Last week, in a 7-2 decision, the court ruled that Padilla stated a new rule and therefore, it does not apply retroactively.

Had the court come down in favor of retroactivity, the effect could have been significant, as thousands, and perhaps tens of thousands, of criminal defendants faced adverse immigration consequences after pleading guilty to a variety of charges.

Elizabeth Wydra, chief counsel for the Washington, D.C.-based Constitutional Accountability Center, who filed an amicus brief in support of Chaidez, expressed disappointment with the decision.

“The Sixth Amendment right to counsel always protected non-citizens’ right to justice as robustly as it applies to citizens,” she said. “For many people, [the decision] means their attempts to vindicate their right to effective assistance of counsel will come to an end.”

But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., said the justices applied the correct standard.

“The overwhelming weight of authority [prior to Padilla] was to the effect that it was not a Sixth Amendment violation to fail to advise a client on immigration issues,” he said. “It might be bad lawyering and it might not be consistent with the best standards, but it was not a constitutional violation. Then, Padilla changed the law.”

A new rule

The Chaidez case demonstrates the complicated legal situation for immigrants dealing with criminal charges.

Roselva Chaidez was a permanent resident from Mexico who pleaded guilty to two counts of mail fraud in connection with a staged auto insurance scam in 2003.

When she applied for citizenship years later, her application was denied. Based upon her convictions, the government began removal proceedings against her.

Chaidez sought to overturn her convictions, arguing that she received ineffective assistance of counsel because her defense attorney failed to inform her about the ramifications of a guilty plea. She claimed she would not have pled guilty if she had been made aware of the immigration consequences of her plea.

The Padilla decision was issued while Chaidez’s motion was pending. The district court determined that Padilla applied to her case and granted her petition to vacate the convictions.

But the 7th U.S. Circuit Court of Appeals reversed.

It said that Padilla announced a “new rule” under the retroactivity standard established by the Supreme Court in Teague v. Lane (489 U.S. 2888 (1989)) and therefore did not apply to Chaidez’s case.

In a decision authored by Justice Elena Kagan, the court affirmed.

Before Padilla “[the] Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself,” the majority said.

“This court announced a new rule in Padilla [and] defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.”

Justice Clarence Thomas wrote an opinion concurring in the judgment. Justice Sonia Sotomayor wrote a dissent that was joined by Justice Ruth Bader Ginsburg.

Implications for immigrants

Scheidegger, whose group filed an amicus brief in support of the government, noted that the Chaidez case also provides an example of the practical difficulties that would have arisen if Padilla had applied retroactively.

The attorney who represented Chaidez during her criminal proceedings in 2003 has since passed away, so “Chaidez can claim whatever she wants because there is no one to contradict her,” he pointed out.

Wydra said she hoped that the Court would remain sensitive to the plight of immigrants caught up in the removal system, because the consequences are severe.

“Given the changes in federal law that have made deportation virtually automatic for a substantial category of crimes, the professional standards of effective assistance of counsel have taken on an even greater importance,” she said.


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