Does the constitutional right to counsel for lawful permanent residents recognized in Padilla apply retroactively?

Guest post by Caitlin Barry

On November 1, the Supreme Court will hear oral argument in Chaidez v. United States, a case which could impact thousands of people fighting their deportations across the country. The issue presented is whether the Court’s decision in Padilla v. Kentucky, which held that criminal defendants have the right to be advised of the deportation consequences of their pending criminal charges, can be applied retroactively and allow individuals to challenge the validity of prior convictions. Chaidez highlights the intersection of multiple issues — the criminalization of immigrant communities, the overwhelming trend towards plea bargains to resolve criminal cases, the drastic increase in immigration enforcement, and the lack of any real due process in the deportation system.

Roselda Chaidez is a lawful permanent resident who has lived in the US since the 1970s, and who continues to reside in Chicago with her US citizen children and grandchildren. In 2003, Ms. Chaidez was accused of playing a minor role in an insurance fraud scheme for which she was paid $1,200. During her criminal case, Ms. Chaidez’s lawyer never explained to her that a conviction would almost certainly result in deportation, and she eventually pled guilty and received a sentence of probation. In 2007, Ms. Chaidez applied to become a US citizen and informed the government of her conviction, not understanding at the time that although her role in the fraud scheme had been minor, the law classified her conviction as an “aggravated felony.” This label applied to Ms. Chaidez’s conviction despite the fact that she had successfully completed her probation and that several years had passed since her conviction. Because of the way the immigration law classifies her crime, she had no right to present any evidence of her family and community ties in her own defense. If she were to be deported, Ms. Chaidez would be permanently barred from ever returning to the US and would face mandatory exile from her family and her community.

Ms. Chaidez filed a petition to overturn her previous conviction based on the Padilla decision, and her request was granted by a federal judge, who agreed that her attorney had a duty to inform her of the risk of deportation before she accepted a plea bargain. Following that decision, the government appealed and the decision was overturned by the Seventh Circuit Court of Appeals, which ruled that the Padilla decision announced a “new rule,” and would only be applied to criminal cases that occurred after the decision was issued in March 2010. Ms. Chaidez petitioned the Supreme Court, which agreed to hear the case and decide whether Padilla will be applied retroactively.

The ability of persons like Ms. Chaidez to remain in their community is becoming increasingly dependent on what occurs in the criminal courtroom.  In 1996, during the last major revision of the immigration laws, the categories of crimes that can lead to deportation were drastically expanded, and the “aggravated felony” category grew to include dozens of crimes, many of which are not even felonies under state law. The revisions to the law applied retroactively, and crimes committed at any time in the past could now be the basis for a deportation hearing. There is no statute of limitations on bringing a deportation proceeding based on a conviction, and many people have no idea that deportation is even a possibility at the time of their criminal trial. Years or even decades later, when immigration authorities knock on the door or stop someone at the airport after a trip abroad, people are informed for the first time that their old conviction is now the basis for a deportation case. In immigration court, there is no right to be represented by an attorney if you cannot afford to hire one, and many individuals are fighting their deportation cases on their own, frequently from inside detention centers that are located far away from their homes and from any legal resources. In the situation of people like Ms. Chaidez, whose convictions fall under the “aggravated felony” label, the immigration judges are barred from taking any personal circumstances into account and must issue a deportation order in the vast majority of cases.

In Padilla, the Court held that “deportation is a particularly severe ‘penalty,’” which could not be easily separated from the conviction itself. Criminal defendants have the right to effective assistance of counsel under the Sixth Amendment, and the Court concluded that that right entitles persons accused of crimes to be informed of the immigration consequences of the criminal charges. Following this decision, federal courts are split on whether Padilla announced a new rule of constitutional interpretation, or whether it clarified an existing application of the law and can be applied retroactively. Between 1997 and 2007, the US government deported 87,000 permanent residents due to criminal convictions. The outcome of Chaidez will determine whether persons who never informed of the deportation consequences of their criminal charges before March 2010 can challenge those convictions, or whether they will lose the right to remain in their communities.

Caitlin Barry is currently the Reuschlein Clinical Teaching Fellow in the Farmworker Legal Aid Clinic at Villanova Law School. Prior to her clinic work, Caitlin served as a staff attorney at Nationalities Service Center, specializing in deportation defense for individuals targeted by the criminal system, and was also the Immigration Specialist at the Defender Association of Philadelphia from 2007-2012. Caitlin is an active collaborator with community organizations working on issues of prison abolition, gender self-determination, migrant justice and grassroots empowerment, and a frequent presenter on the intersections of the deportation and criminal systems.

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