On February 20, 2013, the Supreme Court of the United States issued a much-awaited decision on the retroactivity of its March 2010 decision, Padilla v. Kentucky. As a reminder, under Padilla, the Court held that the Sixth Amendment requires a defense attorney to inform a non-citizen of the deportation risk of a guilty plea. In Chaidez v. United States, the Court held that Padilla is not retroactive. In other words, non-citizens cannot allege ineffective assistance of counsel for convictions finalized before the Padilla decision was issued in March 2010.
In my August 22, 2012 article Post Conviction Relief and Immigration Consequences, I summarized the then-current state of post-conviction relief in the U.S., focusing on Virginia in particular. Thousands of non-citizens found reason for hope after the Supreme Court issued its landmark Padilla decision. But then hope hung in the balance after numerous state and federal courts began to question whether Padilla could be applied to a pre-March 2010 conviction. This is a particularly important issue given the fact that, often, negative consequences of what appeared to be a good plea deal do not rear their ugly head until several years, maybe decades, later. A non-citizen may receive a seemingly fair plea deal that enables them to avoid jail time, only to discover much later that the conviction renders them subject to deportation.
This is exactly what happened to Ms. Chaidez. A green card holder since 1977, she pleaded guilty to mail fraud in 2003 and was sentenced to four years of probation. Ms. Chaidez was never advised that the plea could result in her deportation. She applied for naturalization in 2009 and was then placed in deportation proceedings for the 2003 conviction.
Even though her case fell within the parameters of Padilla, the Supreme Court agreed with the Seventh Circuit that Padilla does not apply to the 2003 conviction of Ms. Chaidez. The Court looked to the principles of retroactivity found in its 1989 decision, Teague v. Lane. Under Teague, a ruling is not retroactive if it announces a new legal principle. Such a “new rule” can be enforced only from the time it is announced. The majority held in Chaidez that Padilla did, in fact, announce a new rule about what constitutes ineffective assistance of counsel in the immigration context and was, therefore, not retroactive. The two dissenting Justices disagreed, finding that Padilla merely applied a principle that governed a prior decision to a different set of facts.
So, what does all of this mean? Unfortunately, the reach of Padilla has now been vastly limited. A non-citizen defendant’s need for proper legal counsel has never been more important than now. It is vital that any non-citizen facing criminal charges discuss the impact of any conviction or plea bargain on their immigration status with an experienced immigration attorney.
The immigration lawyers at Livesay & Myers, P.C. work in concert with our team of criminal attorneys to insure that clients facing criminal charges are fully aware of the potential immigration consequences of any plea bargains under consideration. If you are a non-citizen charged with a crime in Northern Virginia, contact us to schedule a consultation today.