Symposium: Retroactivity means relief from incompetent counsel

By Neil I. Fleischer

As the son of an immigration attorney, I would often accompany my father to various speeches he would give regarding United States immigration law. He begins every speech by “stating that US immigration is the most complex law in our country. At any one time you can deal with three to five government agencies: the Department of Labor, the U.S. Citizenship and Immigration Services, the Department of State, the U.S. Immigration and Customs Enforcement, and the US customs and Border Protection.”

[Click here to see a list of all the symposium contributions.]

He would always go on to talk about the “draconian” immigration reform of 1996 called “IIRAIRA.” When I was a student, I did not comprehend the catastrophic results of the this law that can subject foreign nationals and long time permanent residents of the United States to removal/deportation without judicial review or eligibility for bond because of the immigration consequences of their criminal convictions. Minor or “low level” offenses, even those involving no jail time, can subject a noncitizen to deportation, regardless of whether they are lawfully present in the United States.

Today, as a practicing immigration attorney, I confront the “draconian” effects of my clients’ criminal convictions. Practicing primarily in Ohio, I am fortunate to have available Ohio Revised Code § 2943.031(A) that provides in part that:

[P]rior to accepting a plea of guilty or a plea of no contest … the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

If the judge or magistrate fails to warn a non-citizen of the consequences of his/her plea, in Ohio these convictions can be overturned. However, with the influx of immigrants and enforcement measures, judges are now routinely giving these statutory warnings. Consequently, a non-citizen’s defense counsel has a heightened duty and responsibility to make sure their clients are advised of the immigration consequences of his/her plea deal.

This is because, the U.S. Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that attorneys are required, as a matter of law, to inform a client that entering into a plea agreement in a criminal case carries a risk of deportation. Currently, federal district courts are split on whether Padilla applies retroactively, but in the Southern District of Ohio, the U.S. District Court recently held that Padilla does apply retroactively as an extension of the Strickland rule. Strickland v. Washington, 466 U.S. 668 (1984). The Strickland rule is a two-part test that requires a defendant to show that “counsel’s representation fell below an objective standard of reasonableness,” and demonstrate sufficient prejudice to meet the requirements for a writ of habeas corpus. Id. at 688, 694.

In United States v. Reid, decided in August of 2011, in the Southern District of Ohio, Judge Arthur Spiegel held that Reid, a lawful permanent resident at the time of his conviction, was given ineffective counsel that led to deportation proceedings being instituted against him, and that the Supreme Court’s decision in Padilla applied retroactively to Reid’s case. I filed a writ of coram nobis on behalf of Mr. Reid, and we successfully argued that Padilla did not announce a “new rule” that imposes new obligations on the states and federal government, and thus Padilla should be applied retroactively.

In November 1997, Reid was indicted on eight counts of bank embezzlement, and his first attorney advised him that he and his family would be subject to deportation proceedings if he were convicted at trial. His attorney also told Reid that he would not be exposed to deportation proceedings if he entered a plea agreement. Reid entered the plea agreement based on this grossly inaccurate advice, and was convicted on one of the eight counts of bank embezzlement, sentenced to sixty days in jail, sixty days in a community treatment center, and three years of supervised release.

In July 1999, the Department of Homeland Security (DHS) charged Reid with violation of INA § 237(a)(2)(A)(iii), U.S.C. § 1227(a)(2)(A)(iii), claiming that he was deportable as a result of his conviction for an aggravated felony. Reid was a long-time permanent resident of the United Sates and his entire family, including his children, was now living in the United States.

Aliens in a situation such as Reid, who are rendered deportable because of incorrect legal advice regarding the immigration consequences of entering into a plea bargain, have limited options for relief. The holdings of Padilla and Reid made it possible for zealous immigration attorneys to argue that their client’s former defense counsel did not give the correct advise regarding their criminal plea, and could have these convictions vacated or, alternatively, “re-plea” to an offense which would not result in removal from the United States. The cumulative effect of Padilla is that immigration attorneys, such as myself in Reid, have filed motions to vacate convictions prior to 2010 under the Padilla holding.

The federal appellate courts have split whether or not Padilla should be applied retroactively. Thus, the Supreme Court will hear oral arguments on October 30, 2012 in Chaidez v. United States. The issue in Chaidez is whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.

As an attorney who has litigated this issue, and who frequently must counsel clients about the immigration consequences of their plea, I believe it is absolutely critical that the Supreme Court rule that Padilla applies retroactively in order to ensure that criminal defense attorneys’ errors falling below the prevailing “professional norms of representation” standard do not lead to removal of non-citizens.

Without Padilla retroactivity, those non-citizens who may have received a “good deal” keeping them from incarceration in state and federal prisons, but who were exposed to ineffective assistance of counsel before Padilla was issued will be at risk of possible mandatory detention and removal.

As I learned a long time ago, U.S. immigration law is the most complex law in the land. Misdemeanors are considered “aggravated felonies;” in other words, “low level” crimes can render a noncitizen subject to mandatory detention and removable. In Padilla, the Supreme Court mandated that criminal defense counsel have a heightened duty and responsibility to make sure their clients are advised of the immigration consequences of his/her plea deal. However, the damage to many noncitizens has already been done. Many attorneys were ignorant of the draconian immigration laws, or misguided and uninformed. It is in the interest of justice that the Supreme Court rule that Padilla is retroactive.

Neil I. Fleischer is an attorney at The Fleischer Law Firm LLC in Cincinnati.


  1. says

    Online Symposium on Chaidez v. U.S.: Is Padilla Retroactive?

    " Tomorrow morning the U.S. Supreme Court is scheduled to hear oral arguments in Chaidez v. United

  2. Jorge Villalona says

    As i can sense, most of crimminal lawyers are not responsable of what is hapening or had hapened to hundred of thousands of legal residents because of their guilty plea, since when it occurred the deportatin risk didnt exist at that time. I would say that it was the goberment who took the WRONG idea to take all those people who had accept guilty pleas through DACADES and remove them out of Us. That’s why the US Supreme Court have been sending messages to the goberment through its rulling. Padilla’s rulling has been the must asserting rulling of justice in wich the goberment had committed against its legal resitents and their families. And…most important yet, if the goberment used “Draconian law” of 1996 and 1997 as RETROACTIVE to make mass deportation, WHY NOT to use RETROACTIVE for justice matter?? After Padilla rulling there’s NOTHING to look at…..But BEFORE Padilla, there’s DECADES of abuses by the INS and the BIA. Padilla’s rulling by the Supreme MUST BE SUSTAINED !!, by understanding that real justice was given.

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