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New look at lawyers’ advice

The Supreme Court on Monday agreed to settle a dispute among lower courts on whether to give more immigrants the benefit of a ruling that requires their lawyers to advise them more clearly on what can happen if they plead guilty to a crime.  At issue in the new case of Chaidez v. United States (11-820) is the potential retroactivity of the Court’s 2010 ruling in Padilla v. Kentucky.   This was the only new case granted on Monday; it will be heard and decided in the new Term starting October 1.

In the Padilla decision, the Court ruled that the Sixth Amendment right to counsel includes a right for a non-citizen living in the U.S. to be advised by a lawyer of the consequences under immigration law of pleading guilty to a crime that could lead to deportation.  The majority noted that, under dramatic changes recently in immigration law, deportation is virtually automatic after one is convicted of an ”aggravated felony.”

Relying on the constitutional standard that a lawyer’s professional advice to clients must satisfy a minimum level of performance, the Court in Padilla found that prevailing standards dictate that a lawyer for a non-citizen faced with a criminal charge must advise that individual of the risk of being deported if a plea of guilty is entered.   If the immigration law outlook is not clear, the Court said, the lawyer at least must tell the client that there could be adverse immigration consequences.

The sequel case arose before the Padilla decision was issued, and the Seventh Circuit Court ruled that the non-citizen involved — Roselva Chaidez, now living in Chicago — could not take advantage of that precedent because it did not apply retroactively.  The Padilla decision came down on March 31, 2010, and the Seventh Circuit said that it established a new rule of criminal law and thus, under Supreme Court precedent, it could not apply to any case in which a guilty plea had been entered prior to that March 2010 date.

Chaidez, a native of Mexico, came to the U.S. in the 1970s, and became a lawful permanent resident in 1977.  She has three children and three grandchildren, all of whom are U.S. citizens.   She had been involved in an insurance fraud scheme, in which others had persuaded her to claim falsely that she had been a passenger in a car involved in a collision; she had received $1,200 for her role.  In 2003, she was charged with two counts of mail fraud for two separate billings after the underlying dispute was settled out of court.

Her lawyer did not advise her about the risk of deportation if she pleaded guilty, and did not seek to negotiate a plea deal for her.  She pleaded guilty.  It is not disputed that, had she known of the deportation prospect, she would not have pleaded guilty.  She was sentenced to four years on probation and ordered to pay the insurance company a total of $22,500.  Her conviction became final in 2004.  Three  years later, federal officials became aware of her conviction, and moved to deport her.   She challenged that in federal court, claiming that her lawyer had failed to advise her fully.  That was the claim the Seventh Circuit rejected.   Other federal courts, however, disagree on the retroactivity point.

While the U.S. Solicitor General argued to the Supreme Court that the Seventh Circuit was correct in denying retroactivity, it nevertheless urged the Court to hear the case to clear up the conflict among lower courts.  The Justices accepted that advice.

[Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for and contribute to this blog in various capacities, represents the petitioner in Chaidez.  However, the author of this post operates independently of the law firm.]

Besides granting that case, the Court denied review in two significant new cases:

* In River Center LLC v. Dormitory Authority of New York (11-922), the Court declined to rule on whether the Constitution requires the government, when it seizes private property for public use, to pay compensation for the loss of the potential value of developing the site.  The issue arose in a dispute over the “taking” of a site in the Lincoln Center area of New York City, where the City University of New York was moving to expand the facilities of its John Jay College of Criminal Justice.

* In Virginia v. Banks (11-1071), the Court refused to hear an appeal by the state of Virginia, raising the issue of whether prosecutors may use evidence of a crime that police found when helping an arrested person get a garment to wear on a trip to the jail.  The incident involved police discovery of a gun in a jacket they retrieved for Guy Anthony Banks, Jr., of Lynchburg, Va., after arresting him during an investigation of an attempted robbery and shooting.  State courts ruled for Banks.






Recommended Citation: Lyle Denniston, New look at lawyers’ advice, SCOTUSblog (Apr. 30, 2012, 10:45 AM),