Argument preview: The retroactive application of Padilla v. Kentucky
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. Through a variety of changes to then-existing law, the Act took steps to facilitate the deportation of non-citizens convicted of crimes.
Aggressively enforcing the reforms, the executive branch has removed record numbers of noncitizens – four hundred thousand per year in the last two years. As a result, the Supreme Court has addressed a growing number of removal cases based on criminal convictions. Earlier this month, for example, the Court heard oral arguments in Moncrieffe v. Holder, in which the government removed a non-citizen based on his criminal conviction for possessing a small amount of marijuana. In addition, the growing intersection of immigration and criminal law — dubbed “crimmigration law” — has spawned a growing genre of legal scholarship. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in Moncrieffe.]
In Padilla v. Kentucky (2010), the Court held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on an attorney’s failure to inform a criminal defendant of the risk of deportation resulting from a plea agreement and criminal conviction. In so holding, the Court recognized that “deportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Next week, in Chaidez v. United States, the Court will hear oral argument on whether Padilla applies retroactively, so that non-citizens who were convicted before its 2010 decision in that case can benefit from it as well. [Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to Chaidez, but the author of this post is not affiliated with the firm.]
In 1971, petitioner Roselva Chaidez, a citizen of Mexico, came to the United States; she became a lawful permanent resident in 1977. In 2003, Chaidez, on advice of counsel, pled guilty to mail fraud in connection with an insurance scheme in which she received $1200; the entire scheme netted about $26,000. Chaidez was sentenced to four years of probation. Now fifty-five years old, she lives in Chicago with family members who are U.S. citizens.
Under the U.S. immigration laws, a fraud conviction involving a loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported. In 2009, after Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview), the U.S. government initiated removal proceedings based on her conviction.
Chaidez filed a motion for a writ of coram nobis to set aside the conviction, claiming that her attorney failed to inform her that a guilty plea could result in removal from the United States. She maintains that, if her attorney had informed her of the possible immigration consequences of the plea bargain, she would not have accepted it. While Chaidez’s motion was pending, the Court issued its decision in Padilla.
In Teague v. Lane (1989), the Court held that a new procedural rule announced by a court could not be retroactively applied in a collateral attack on a criminal conviction. Applying Teague to Chaidez’s case, the district court vacated her conviction, holding that Padilla applied the well-established rule – and thus not a new rule — that ineffective assistance of counsel violated the right to counsel under the Sixth Amendment.
A divided panel of the Seventh Circuit reversed. The court held that because Padilla in fact announced a new constitutional rule, it could not, under Teague, apply retroactively to Chaidez’s conviction. In its view, Padilla would be considered an established rule only if precedent “compelled the result” – which, as demonstrated by the fact that the Justices on the Court expressed such an “array of views,” it did not.
The arguments by the parties in the merits briefs are fairly predictable. Chaidez contends that Padilla did not announce a new rule but rather was simply a fact-specific application of the well-established rule that, under the Sixth Amendment, an attorney in a criminal case must provide reasonably effective assistance. Chaidez’s lawyer thus had a duty to advise her of the immigration consequences of her criminal conviction.
In contrast, the government argues that the Seventh Circuit was correct that Padilla announced a new rule and does not apply retroactively to collaterally challenge Chaidez’s conviction. Before Padilla, the applicable precedent did not require counsel to provide advice on matters that were not directly part of the criminal case.
As the Court has recognized, deportation is a harsh measure. In Padilla, the Court acknowledged that that the possible removal due to a criminal conviction may be more important to a non-citizen than the punishment. In so doing, the Court held that an attorney who fails to advise a client of the immigration consequences of a plea may be guilty of ineffective assistance of counsel under the Sixth Amendment. It further noted that roughly ninety-five percent of the criminal convictions today are obtained through plea bargains similar to Chaidez’s. Knowledge of possible deportation as a consequence of a plea is a critical ingredient to a non-citizen’s informed judgment about accepting the plea.
In Chaidez, the Court will decide the full reach of its decision in Padilla. That decision in turn will have an impact on a great many non-citizens with criminal convictions before 2010 – many of whom in these times of increased immigration enforcement are frequently caught up in the removal machinery of the U.S. government.
From an immigration standpoint, the government is focusing resources on the detection, arrest, and removal of immigrants convicted of crimes, including crimes that many generally would not view as sufficiently serious to subject a person who has lived decades in the United States, like Chaidez, to removal from the United States. The Obama administration and future administrations will likely continue to focus for the foreseeable future on removing “criminal aliens” – a politically unpopular group — from the United States.
In these times, defense counsel unquestionably should know that noncitizens are subject to serious immigration consequences, including possible removal, for almost any criminal conviction. The 1996 reforms made the immigration consequences of many criminal convictions all the more onerous – and well-known among defense counsel. Indeed, many treatises and practice guides as early as the 1980s observed that defendants could not knowledgeably decide whether to accept a plea bargain without weighing the possible deportation consequences of a criminal conviction. In that light, it was patently unreasonable for Chaidez’s counsel in 2003 to fail to advise her of possible removal due to the plea and conviction.