Scholars Sidebar: Does Padilla Apply Retroactively?

The Supreme Court’s decision to grant certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), means it will soon decide whether the landmark Padilla opinion applies retroactively or not. In the process, the Court will resolve a circuit split that’s developed in the two years since Padilla was issued—not to mention the wide disagreement among state courts and lower federal courts that I’ve chronicled on numerous occasions on this blog (including in this summary).

In an article I wrote for LexisNexis’s Emerging Issues Analysis series, I explain why and how Chaidez stands to impact the work of the criminal defense attorneys and immigration attorneys who represent the 150,000 or so individuals who are removed annually because of a criminal conviction. César Cuauhtémoc García Hernández, Chaidez v. United States: Does Padilla v. Kentucky Apply Retroactively?, 2012 Emerging Issues 6357 (May 2012). Here’s a teaser from the summary:

This article explains what is at stake in Chaidez. Specifically, Part I relays the factual and procedural history of Chaidez. Part II follows with a discussion of the vast number of people who may be impacted by the Court’s decision and how that impact would occur. Lastly, Part III addresses the key legal question in Chaidez, Padilla’s retroactive application, including detailing the dramatic split that erupted between federal courts of appeals, as well as state courts, and the parties’ positions thus far before the Supreme Court.

Unfortunately, I can’t post a full version of the article here, but it’s available from Lexis.