Chaidez v. U.S. - Counsel's obligation to provide advice on risks of deportation not retroactive

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to effective assistance of counsel. The U.S. Supreme Court in 2010 held that the Sixth Amendment requires an attorney for a non-citizen criminal defendant to provide advice about "the risk of deportation arising from a guilty plea." Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla raised the issue of whether such an obligation applies retroactively to pleas entered prior to its ruling. Litigation ensued for several years on this vary issue, as non-citizens sought to fight deportation by using Padilla to overturn their criminal convictions. On February 20, 2013, in a 7-2 decision, the Supreme Court held that counsel’s obligation to advise non-citizens the immigration consequences of guilty pleas do not apply retroactively to convictions that had become final before Padilla. Chaidez v. United States, 568 U.S. ___ (2013).


Background of the case
The defendant Ms. Chaidez is a native and national of Mexico who became a lawful permanent resident of the United States in 1977. About 20 years later, she took part in a scheme to defraud an automobile insurance company out of $26,000. As a result, she pled guilty to two counts of mail fraud, in violation of 18 USC §1341. Her conviction became final in 2004. Chaidez' offense constituted an aggravated felony under the immigration law pursuant to 8 USC 1101(a)(43)(M)(i) as an offense "involv[ing] fraud of deceit in which the loss to the victim or victims exceeds $10,000."

Aggravated felonies are considered the most serious grounds of deportation under federal immigration law, automatically rendering the offender ineligible for most immigration benefits and forms of relief from deportation including application for admission, political asylum, adjustment of status, waivers, citizenship, etc. Immigration officials were not aware of Chaidez' conviction until 2009, when she applied for naturalization to become a U.S. citizen. After Ms. Chaidez was placed in removal proceedings, she filed a petition in Federal District Court in an attempt to overturn her prior criminal conviction by arguing that her former attorney's failure to properly advise her of the plea's immigration consequence was a violation of her Sixth Amendment rights. Padilla was decided while her federal case was pending. The Federal District Court agreed that her Constitutional rights were indeed violated and overturned her conviction. On appeal, however, the Seventh Circuit reversed the District Court's decision and held that Padilla did not apply retroactively. Undaunted, Ms. Chaidez appealed to the U.S. Supreme Court. There was a split of authority among federal circuits and state courts on this vary issue, to which the U.S. Supreme Court responded with a grant of certiorari to hear Ms. Chaidez's case.

The issue of the case: Did Padilla make a new rule?
In Chaidez, the Supreme Court first reviewed the threshold issue of whether or not Padilla created a new rule of law. Padilla applies retroactively only if it did not create a new rule of law. Teague v. Lane, 489 U.S. 288.

Counsel's obligation to advise non-citizens immigration consequences of guilty pleas does not apply retroactively
The Supreme Court held that legal representation in criminal cases violates the Sixth Amendment if it falls "below an objective standard of reasonableness," as indicated by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668 (1984). Strickland did not discuss whether Sixth Amendment effective counsel assistance extends to indirect or collateral consequences of a conviction.

In Hill v. Lockhard, 474 U.S. 52, the Supreme Court had explicitly left open whether the Sixth Amendment right extends to collateral consequences of criminal convictions such as civil penalties, employment, sex offender registration, voting rights, housing, public benefits, etc. However, the lower federal courts and state courts overwhelmingly concluded that the Sixth Amendment does not require advising clients of a conviction’s collateral consequences.

For the first time, the U.S. Supreme Court in Padilla examined the issue of whether Strickland applies at all with respect to counsel's obligation to advise clients on the issue of immigration consequences, and concluded it does. The rationale was that deportation is so intimately related to a criminal conviction and is very much like a direct consequence. But did Padilla declare a new rule of law? It was the question that must be answered before the issue of retroactivity could be decided, according to the Supreme Court.

A case declares a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S., at 301. A case does not announces a new rule if it merely applies an established principle from a prior case to a new set of facts. Id. at 307. And a reasonable juris standard is employed to determine the difference. Lambrix v. Singletary, 520 U.S. 518, 527-528.

According to the Supreme Court in Chiadez, Padilla "broke new ground and imposed a new obligation," 568 U. S., at ___ (slip op., at 2) because Padilla rejected the previous categorical approach that treated immigration as a civil matter and excluded immigration consequences from Sixth Amendment protection. Acknowledging that deportation is a particularly severe penalty which is closely related to and almost "an automatic result" of a criminal conviction, the Padilla court held for the first time that immigration consequences are within the realm of Sixth Amendment protection. And because it was the first time that the Supreme Court broke the wall between direct and collateral consequences, it considered it to be a new rule of law. Consequently, Padilla does not apply retroactively.

Chaidez and dissent's view:
Ms. Chaidez and the dissent's position was that the case should just be treated as a normal Strickland test - whether a reasonable, competent counsel would advise his or her client of the immigration consequences, citing some federal and state court cases. The majority noted that these cases are about the broader proposition that attorneys must not materially misrepresented important facts to their clients; it just so happened that these cases involved immigration issues but they did not directly and specifically hold that Sixth Amendment effective counsel assistance covers immigration consequences. The almost unanimous conclusion of the states and federal courts that there is no Sixth Amendment obligation to advise criminal clients of collateral consequences also supports the proposition that Padilla broke new ground.  

Conclusion and post-Chaidez

Under Chaidez, one may no longer claim Sixth Amendment violations based on counsel’s failure to provide advice on the risks of deportation arising from guilty pleas in cases that had become final prior to Padilla.  However, the Supreme Court left open the question as to whether or not the Teague rule applies to federal convictions.  Further, other ineffective counsel claims such as material misrepresentation and post-conviction counsel misconduct can still be made.

One lesson that should be learned from Chaidez is that a noncitizen should not apply for naturalization (or other immigration benefits, for that matter) without first thoroughly examining his or her background to determine if there are any risks of deportation.  Ms. Chaidez’ conviction became final in 2004, but it was only until she applied for naturalization in 2009 that she was placed in deportation proceedings by the Department of Homeland Security.  Naturalization should no longer be considered as a “simple” or “routine” administrative application.