Is the Padilla ruling alive and well or on life support?
By Attorney Farhad Sethna © 2013
On February 13, 2013, the United States Supreme Court decided Chaidez v. U.S., 568 U. S. ____ (2013). Chaidez essentially arose out of the Supreme Court’s decision of March 31, 2010 in Kentucky v. Padilla, 559 U.S. 356 (2010).
As background, in Padilla, the Supreme Court held that failure to advise a client of the immigration consequences of a criminal conviction was a breach of a lawyer’s duty to provide competent representation. Therefore, the Supreme Court reasoned, a defendant who later faced deportation due to such bad advice or lack of advice should be permitted to collaterally attack the conviction on the basis of ineffective assistance of counsel. There was immediate response from the Federal circuits, with decisions retroactively applying Padilla, and decisions declining to apply Padilla retroactively. This split between the circuits was therefore ripe for review before the Supreme Court once again, and presented that opportunity in the Chaidez case.
Essentially, what Chaidez had to resolve was whether the Supreme Court in Padilla created a “new rule” imposing attorney obligations. If the Supreme Court did not create a new rule, then Padilla would be retroactive, meaning that any decision in which an alien had not been advised of the immigration consequences of any conviction could be collaterally attacked on the basis of ineffective assistance of counsel.
If however, the Supreme Court decided that Padilla had created a new rule regarding the duties of counsel, then the decision could not be retroactive.
Events leading up to Chaidez
Chaidez arose out of a very familiar and common fact scenario:
In Chaidez, the plaintiff, Rosalia Chaidez pled guilty in 2004 to a charge of insurance fraud. In 2009, she applied for naturalization. She should have sought legal counsel before she applied for naturalization and she should have been advised that her guilty plea in 2004 may have had immigration consequences. While she may have done so, she nevertheless applied for naturalization. The naturalization application was denied, and Ms. Chaidez was placed into removal proceedings.
This is a very familiar fact situation – in fact, I have written about it several times on this blog in several articles. I always advise my clients or any readers that they should seek the advice of qualified immigration counsel before they apply for any immigration benefit especially if they have any prior criminal record of any sort – including any “expunged” convictions or alternative sentences / diversionary programs. Generally, even admission into a diversionary program is considered a conviction for immigration purposes.
Summary of the Supreme Court’s ruling
In Chaidez, the Supreme Court decided that Padilla had indeed created a new rule, by requiring that counsel must advise their clients of the immigration consequences of a plea or conviction. The Court held that Padilla imposed a new obligation on counsel and thus created a new rule.
However, the fact that Chaidez clarified Padilla does not mean that Chaidez overruled Padilla.
On the contrary, Chaidez makes it very clear that even though Padilla created a new rule, the decision in Padilla is still good law and that counsel still has an obligation to advise their clients of the immigration consequences of a criminal plea or a criminal conviction.
That being said however, Chaidez limited Padilla to any cases that became final convictions on or after the Padilla decision was issued which would be March 31, 2010. Therefore, for those aliens who had immigration consequences arising out of criminal convictions that became final before March 31, 2010, Padilla does not apply. They cannot attack the criminal conviction on the basis of ineffective assistance of counsel – at least under the Padilla-Chaidez reasoning. If however, their conviction became final after March 31, 2010, they may attack their underlying conviction using Padilla-Chaidez.
Implications and complications
A conviction is typically treated as “final” when either: (1) all available avenues for appeal have been exhausted; or (2) the time for appeal has lapsed and no appeal has been filed. Chaidez therefore becomes a last hope for an alien who faces removal especially if the alien can prove that his or her counsel did not provide any advice about the immigration consequences of the conviction, and that the conviction became final after on or after March 31, 2010.
But here’s another problem – even if the client is successful in having his or her plea vacated and the conviction overturned, the underlying charges have not been dismissed. It’s only the plea or the conviction that was vacated. The alien still stands accused of the crime. The original indictment is still active. The case returns to the prosecutor. Now a criminal defense attorney has to consider what the prosecutor may do in that circumstance – negotiate a lower plea that would not have any immigration consequences or insist on retrying the client on all the initial charges with no plea agreement. Therefore, before filing for relief under Padilla and Chaidez, or filing any motions with the respective state or local courts, it would be prudent for defense counsel to seek the prosecutor’s position on negotiating a new plea for the client.
In conclusion, Padilla and Chaidez do give a removable alien a “second bite of the apple” to reverse a criminal conviction. However, (1) the conviction must have become final on or after March 31, 2010, and (2) the prosecutor should be amenable to reducing the charges to a level that result in either no immigration consequences, or immigration consequences for which the alien can claim a form of relief from removal.
As the reader can see, it is imperative to not only have qualified, knowledgeable counsel, but even have a second opinion from counsel who are well qualified in immigration law, before entering into any kind of plea agreement or alternative sentencing program. Alien defendants should make their immigration status known to a criminal defense attorney at the outset of the representation. All discussions regarding the plea and sentencing must be conducted with the client’s immigration status being one of the foremost issues in the defense attorney’s mind.
Details about relief from removal, the immigration consequences of criminal conviction, and the operations of immigration court and removal proceedings in general are contained in other articles on this blog.
Please note that this article is NOT intended to be legal advice about the specifics of any individual case. For an analysis of your case, please contact an attorney who is experienced in immigration law.