Supreme Court Ruled That Padilla Does Not Have A Retroactive Effect
Author: New York Criminal Immigration Lawyer Alena Shautsova
The case of Padilla v. Kentucky, 559 U. S. 356 (2010) was one of the most exciting decisions in the recent years which acknowledged the importance of Immigration advice for non-citizens at the time of criminal proceedings. It one more time confirmed that a non –citizen pleading guilty to a crime, even a misdemeanor sometimes essentially waives all his immigration rights and signs his own deportation order. The Padilla case effectively opened a door for non-citizens who were not provided a competent advice regarding the immigration consequences of their guilty pleas to file a motion to vacate their guilty pleas.
That door was effectively closed by the Supreme Court on February 20, 2013 in Chaidez v. United States, Docket 11-820 (2013) when it held that Padilla does not have a retroactive effect because the Padilla case created a new rule and under Teague v. Lane, 489 U. S. 288 (1989) it cannot be applied to convictions finalized before the Padilla was decided. It means that those non-citizens who were deprived of competent advice of counsel to the Padilla’s decision cannot take advantage of its ruling.
The significance of the recent ruling in Chaidez v. United States, (2013) is not only that all those who suffered prejudice and ineffective assistance of counsel will be deported anyway. With the mandatory Federal sentencing guides, and certain States legislation pieces such as California’s “3-Strikes and you out” laws, the job of the judges has been taken over by legislators. It is a well -known fact that in some cases justice is only served if sentences are rendered on a case-by-case basis. A State misdemeanor conviction can turn into an Immigration aggravated felony conviction with a permanent bar for a non-citizen to receive any chance of any relief under the current Immigration laws. Immigration judges should have an ability to consider other factors of person’s life before permanently removing them from the U.S. and forever separating them from their families. Same goes for guilty pleas and the circumstances they were given, including reliance on counsel’s advice.
In Chaidez, Justice Sotomayor delivered a dissenting opinion stating “ I would reverse the judgment of the Seventh Circuit and hold that Padilla applies retroactively on collateral review to convictions that became final before its announcement.” I personally, agree with her reasoning, which is available here: http://www.russianspeakinglawyerny.com/padilla-does-not-have-a-retroactive-effect-scotus-holds/
Alena Shautsova is a principal at the Law Office of Alena Shautsova, a full service Immigration Law Firm. The author can be reached at a.shautsova@gmail.com and encourages her colleagues to contact her with questions.