The U.S. Supreme Court announced today that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively. Chaidez v. United States, No. 11-820 (U.S. Feb. 20, 2013). The Court’s decision in Chaidez means that noncitizens convicted prior to March 31, 2010 who received ineffective assistance of counsel because they were not properly advised about the immigration consequences of conviction can’t challenge those convictions. In effect, untold numbers of people will suffer the consequences of unconstitutional convictions. (A detailed discussion of Chaidez is available here at crImmigration.com’s online symposium of the case.)
Writing for the majority of the Court, Justice Kagan (joined by Justices Roberts, Scalia, Kennedy, Breyer, and Alito) explained that Padilla doesn’t apply retroactively because it “broke new ground” or “imposed a new obligation” on the government. Chaidez, No. 11-820, slip op. at 9-10 (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). Specifically, Padilla asked whether the modern test for determining ineffective assistance of counsel announced in Strickland v. Washington, 466 U.S. 668 (1984), “applied at all.” Chaidez, No. 11-820, slip op. at 9. As Justice Kagan put it,
“In other words, prior to asking how the Strickland test applied (‘Did this attorney act unreasonably?’), Padilla asked whether the Strickland test applied (‘Should we even evaluate if this attorney acted unreasonably?’). And as we will describe, that preliminary question about Strickland’s ambit came to the Padilla Court unsettled—so that the Court’s answer (‘Yes, Strickland governs here’) required a new rule.”
Chaidez, No. 11-820, slip op. at 6.
Justice Sotomayor, joined by Justice Ginsburg, vigorously disputed the majority’s view. To her,
“Padilla did nothing more than apply the existing rule of Strickland v. Washington, 466 U. S. 668 (1984), in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea.”
Chaidez, No. 11-820, slip op. at 1 (Sotomayor, J., dissenting).
This decision has enormous implications for immigrants and their attorneys. Many noncitizens convicted in violation of the Sixth Amendment right to effective assistance of counsel are now precluded from challenging those convictions if they became final before March 31, 2010, the date the Court issued Padilla. Given the Obama Administration’s emphasis on targeting for removal people convicted of crimes, including longtime LPRs, there is no shortage of people who may fall into this category.
The lonely glimmer of hope after today’s decision is that states are not obligated to use the Teague retroactivity framework, and some (see here) have already turned to their own tests to decide that Padilla is retroactive. Those decisions should not be affected by Chaidez.
In the next few days, lawyers and academics well-versed in Padilla will contribute analyses of this week’s decision to crImmigration.com. Stay tuned.