crimmigration.com

The intersection of criminal law and immigration law

Archive

After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

CT Supreme Court: Padilla isn’t retroactive

In a much anticipated case, the Connecticut Supreme Court held this week that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively to state convictions. Thiersaint v. Commissioner of Correction, No. SC 19134, slip op. (Conn. April 14, 2015). In Padilla, the U.S. Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires criminal defense attorneys to advise noncitizen clients about the immigration consequences of conviction. This week’s Connecticut decision makes it less likely that migrants who were denied such advice prior to March 31, [...]

Virginia Supreme Court on Padilla prejudice standard

Migrants are prejudiced, the Virginia Supreme Court held, when their criminal defense attorneys fail to provide advice that would objectively lead them to turn down a plea offer whether or not the evidence of guilt is strong. Zemene v. Clarke, No. 140719, slip op. (Va. 2015). Students from the Immigrant Justice Clinic at American University Washington College of Law successfully argued this case under the supervision of their outstanding professor Jayesh Rathod. This case concerned a lawful permanent resident who was convicted of petit larceny stemming from an incident in which he was [...]

GA Supreme Court: “Could” be deported isn’t good enough for aggravated felony conviction

The Georgia Supreme Court took a strong stance in defense of the Sixth Amendment’s right to effective assistance of counsel recently when it held that advising a migrant defendant facing an aggravated felony conviction that he “could” be deported violated the U.S. Constitution. Encarnacion v. State, No. S14A0690, slip op. (Ga. September 22, 2014). Chief Justice Thompson wrote the court’s decision. This case involved a migrant convicted by way of a guilty plea to burglary. The parties and the court agree that this is a burglary offense as defined for immigration law purposes, INA § [...]

7 Cir: Padilla & Chaidez don’t differentiate between no advice & bad advice; neither merits retroactive application of Sixth Amendment

The U.S. Court of Appeals held that the Sixth Amendment right to receive advice about the immigration consequences of a conviction does not apply prior to March 31, 2010 whether the criminal defense attorney affirmatively provided incorrect advice or simply failed to say anything about possible immigration consequences. Chavarria v. United States, No. 11-3549, slip op. (7th Cir. Jan. 9, 2014) (Cudahy, Ripple, and Hamilton, JJ.). Judge Cudahy wrote the panel’s opinion. This case involved an LPR who was convicted in 2009. After the Supreme Court announced in Padilla v. Kentucky 559 U.S. 356 [...]

TX Appellate Ct: When is deportation consequence “truly clear” for Padilla?

By Jorge G. Aristotelidis In 1997, Isabel Rodriguez Campos, a legal permanent resident (LPR), was arrested for misdemeanor theft (involving $50.00-$500.00), and for prostitution, both classified as Class B misdemeanors in Texas. She soon met her court appointed counsel who, aware of her immigration status, recommended that she plead guilty to both offenses, and received a probated sentence that was later revoked to a term of 60 days in jail. Years later, Ms. Rodriguez discovered that as a result of her two convictions, she is deportable, albeit with the possibility of discretionary relief [...]

Padilla cert petition on SCOTUS conference agenda

The U.S. Supreme Court will consider whether to hear a case about the contours of Padilla v. Kentucky, 559 U.S. 356 (2010), when it meets on Friday. Longtime LPR Isabel Rodríguez is asking the Court to overturn a Texas state court’s conclusion that eligibility for cancellation of removal means her removal was not “truly clear.” Rodríguez v. Texas, No. 13-5860 (U.S.). The lower court decision, Ex Parte Rodríguez, Nos. 04-11-00038-CR, 04-11-00039-CR, 2012 Tex. App. LEXIS 3207 (Tex. Ct. App. April 25, 2012), stemmed from convictions for theft by check and prostitute. According to the Texas [...]

Mass. High Court Breathes New Life into Padilla in Commonwealth v. Sylvain

By Christopher N. Lasch In an important decision last week the Massachusetts Supreme Judicial Court (SJC) confirmed it will continue to part ways with the United States Supreme Court over the retroactive application of the Supreme Court’s 2010 decision in Padilla v. Kentucky, 559 U.S. 356, requiring effective crimmigration counsel. In February, the U.S. Supreme Court issued Chaidez v. United States, 133 S. Ct. 1103 (2013), holding Padilla is not to be applied retroactively. Chaidez (summarized here in February) was a disappointment on any number of levels, as was discussed extensively on [...]

Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens

By now, crImmigration followers are well aware of the test the Supreme Court set out in Padilla v. Kentucky, 130 S. Ct. 1473 (2010): when deportation is clearly going to result from conviction, the criminal defense attorney must tell her client as much, but “[w]hen the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” This framework, I write in a new article, is highly problematic. Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens, [...]