Published: April 30, 2012

Firstly, a review: On March 31, 2010, the U.S. Supreme Court issued a decision in the case of Padilla v. Kentucky, declaring that noncitizen criminal defendants seeking to plead guilty have a constitutional right to be advised by their criminal counsel of the deportation consequences of such a plea.

The case arises out of the State of Kentucky, with Jose Padilla, a long time lawful permanent resident and U.S. Army veteran, facing removal to Honduras after agreeing to plead guilty to a state felony charge of trafficking marijuana. The kicker in Padilla’s case is that his defense counsel provided the wrong advice, assuring him that no deportation consequences would follow such a plea. Not only were there deportation consequences for Padilla, but the nature of the conviction he accepted was such that no relief or defense in removal proceedings was available. In essence, Padilla unknowingly accepted a one-way ticket to Honduras following the prison term that was part of his sentence.

In examining the evolution and current state of our immigration laws over the past century, the U.S. Supreme Court in Padilla expressed concern regarding non-citizen criminal defendants’ 6th Amendment rights and their unknowing acceptance of the disproportionate consequence of deportation:

“Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

For non-U.S. citizens facing deportation (removal) because of their uninformed acceptance of a guilty plea, the recent Supreme Court decision may very well breathe new life into their deportation defense. That is, when a non-citizen relinquishes a legitimate defense to the underlying criminal charge based on the assurances of their then criminal counsel, a petition to vacate or reopen the underlying conviction (also known as post-conviction relief) may very well now be viable. One of the big questions that gets considered in the analysis, however, is whether in fact a legitimate defense to criminal charges was in fact relinquished, or whether the accused really had nothing to support a defense and their ignorance in taking the uninformed guilty plea was of no practical consequence. With post-conviction relief often being a non-citizen’s last line of defense in removal proceedings and final option to remain in the U.S., Padilla v. Kentucky may turn out to be the fresh pretext upon which the criminal court can hang its hat on in reversing the conviction.

However, left unaddressed by the Supreme Court in Padilla was the question of how the decision would impact those who accepted guilty pleas – with toxic immigration consequences – before Padilla was decided. Over the past 2 years, U.S. Courts of Appeal have issued conflicting rulings as to whether Padilla should be applied retroactively, that is to guilty pleas entered into prior the Supreme Court’s pronouncement in March, 2010.

In this regard, the U.S. Supreme Court just today, in Roselva Chaidez v. United States, agreed to consider whether Chicago resident Roselva Chaidez, a 56 year old Lawful Permanent Resident of the U.S. (but Mexican citizen) who came to the U.S. 40 years ago, should be deported as a result of her guilty plea to a 2003 charge of submitting a fraudulent auto insurance claim. Although she successfully completed a term of four years of probation and paid $22,500 in restitution, federal immigration authorities, in 2009, commenced deportation proceedings against her due to this criminal conviction. In response, Ms. Chaidez proceeded back to the criminal court to attempt to undo her criminal conviction – citing Padilla – on the basis that her criminal attorney failed to inform her that deportation was a potential consequence of her guilty plea.

Late last year, her effort to vacate her conviction was rejected by the U.S. Court of Appeals, 7th Circuit, because, according to the 7th Circuit, Padilla was not intended to be applied to guilty pleas entered into prior to the Supreme Court ruling. Oral arguments before the U.S. Supreme Court in Chaidez are expected in October, and a decision likely by early 2013.

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois