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SCOTUS: Padilla does not apply retroactively

This week, the U.S. Supreme Court decided Chaidez v. United States, holding that the much-lauded 2010 case Padilla v. Kentucky cannot be applied retroactively. Padilla held that the failure of criminal defense attorneys to advise their noncitizen clients of the immigration consequences associated with taking a guilty plea violated their Constitutional rights. Therefore, it became possible for noncitizens facing deportation to overturn their convictions or any resulting removal order.

One issue that has led to widespread litigation is whether Padilla applies retroactively. In other words, can noncitizens whose criminal convictions were final before Padilla was decided still benefit from the rule? The U.S. Supreme Court has now said that they cannot. This means that individuals whose criminal convictions became final before March 31, 2010, the date Padilla was decided, cannot challenge their removal orders or underlying convictions, even if they were not properly advised about the immigration consequences of their pleas.

In Chaidez, the Court applied the "Teague test" for retroactivity, holding that Padilla could not be applied retroactively because despite being grounded in the Sixth Amendment, the decision "imposed a new obligation on the government." Specifically, the Court found that Ms. Chaidez, a lawful permanent resident of the United States for over thirty-five years, could not overturn her 2004 conviction for federal mail fraud, a removable offense, despite the fact that her attorney never told her that her guilty plea would subject her to deportation. Although Ms. Chaidez subsequently moved the Court to overturn her conviction based on ineffective assistance of counsel, because her conviction had become final five years earlier, she could not use Padilla to overturn it.

While the Chaidez decision is serious and will negatively impact many immigrants who are depending on Padilla to overturn their convictions, there is still some hope. There are separate state protections that will still consider an attorney's failure to advise noncitizens on the immigration consequences of their pleas to be ineffective assistance of counsel. Thus, many individuals with final convictions before March 31, 2010 may still be able to overturn their convictions under state law.

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