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, [...]

Criminal Defense After Padilla v. Kentucky

In the three-and-a-half years since the Supreme Court recognized that the Sixth Amendment right to counsel requires advice about the deportation consequences of conviction in the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010), courts and commentators have had a lot to say about its impact. Without question, nothing has been more important than the Supreme Court’s decision last term in Chaidez v. United States, No. 11-820, slip op. (U.S. 2012), in which the Court refused to apply Padilla’s holding retroactively. Despite a second round at the Supreme Court, though, not much has appeared [...]

Tx Ct Crim App: Right to counsel properly waived despite not being told about deportation possibility

The Court of Criminal Appeals of Texas, the state’s highest criminal court, held that a person who waived his right to an attorney in a misdemeanor drug possession prosecution did not do so impermissibly despite not having been told that he might be deportable upon conviction. State v. Guerrero, No. PD-1258-12, slip op. (Tex. Crim. App. June 5, 2013) (Cochran, Keller, Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ.). Judge Cochran wrote the court’s opinion. This case presents like the picture of interior immigration enforcement in the age of crImmigration law. The defendant entered [...]

Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

Jason Cade On Tuesday I posted about the need to narrow the aggravated felony grounds of removal to exclude misdemeanors, which are increasingly unreliable evidence of wrongdoing. Today I’ll be writing about another piece of the proportionality problem in immigration law: deportation on the basis of “convictions” that have been pardoned, expunged, deferred, or that are still pending on direct appeal. Before the Gang of Eight came up with a comprehensive immigration bill in the Senate (S. 744), the Obama Administration prepared its own draft legislation, leaked by the Miami Herald back in [...]

Tex Ct Crim App: Padilla not retroactive

The highest criminal court in Texas held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively to convictions that had become final prior to March 31, 2010, the date Padilla was announced. Ex parte De Los Reyes, No. PD-1457-11, slip op. (Tex. Crim. App. March 20, 2013) (Hervey, Keller, Price, Johnson, Keasler, Cochran, and Alcala, JJ.). Justice Hervey delivered the court’s opinion. This case involved an LPR who was convicted of theft in 1997 and again in 2004. DHS claims that theft is a crime involving moral turpitude, thus De Los Reyes is removable for having been [...]

Trying (& Failing) to Find Logic in Chaidez

By Michael S. Vastine This post could easily become an unbecoming rant, given the frustration that I share with my colleagues in the immigrant defense bar over the reasoning and outcome of Chaidez v. Holder, 568 U. S. ____, No. 11-820, slip op. (U.S. Feb. 20, 2013). Chaidez held that the Sixth Amendment right to effective representation, which as enumerated in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), includes the right to accurate advice regarding the obvious immigration consequences of a guilty plea, does not apply retroactively to cases that were final at the time Padilla was [...]

Padilla Claims Post-Chaidez: What’s Left??

By Dawn Seibert The Court held in Chaidez v. U.S. that Padilla v. Kentucky, 559 U.S. 356 (2010) is a “new rule” pursuant to Teague v. Lane, 489 U.S. 288 (1989), and thus under the Teague analysis does not apply retroactively to convictions that were final before Padilla was decided. This is a deeply unjust decision. Ms. Chaidez pleaded guilty two years after Mr. Padilla, and her post-conviction relief (PCR) petition was pending when Padilla was decided. Therefore, the norms supporting the Sixth Amendment duty to advise regarding immigration consequences were firmly in place at the time of [...]

Chaidez: Ignoring Precedent & Procedural Posture

By Christopher N. Lasch The Court’s decision in Chaidez v. United States, elegantly described by Rebecca Sharpless here, was a woeful misstep. The Chaidez majority appears to have paid heed to Justice Scalia, whose dissent in Padilla was a jeremiad forecasting “years of elaboration upon these new issues in the lower courts.” Padilla v. Kentucky, 130 S. Ct. 1473, 1496 (2010). Eager to stem the tide of Padilla-based claims, the Chaidez Court applied the Teague v. Lane rule in circumstances that would have the original proponents of the doctrine howling, and that ignored and retreated from the [...]