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.
