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U.S. Supreme Court To Hear Padilla Retroactivity Argument

The United States Supreme Court has granted certiorari in the case of Chaidez vs. United States. The U.S.. Supreme Court will determine whether an immigrant, who pled guilty or no contest to a criminal charge more than two years ago can go back and attack the previous conviction based on an attorney’s ineffective assistance of counsel in failing to adequately advise them of the immigration consequences of their criminal plea. This case is a direct result of the United States Supreme Court’s decision in Padilla vs. Kentucky, 130 S. Ct. 1473 (2010), where the Court held that a criminal defense attorney must properly advise an immigrant client of the immigration consequences of his or her criminal plea. The rules generally allow a person to go back two years to challenge a criminal plea. Chaidez v. United States will determine whether a person can go back past the two years and challenge a plea that is 5, 10, 15, 30 years old or more.

This case is of global importance in the immigration community. Thousands of immigrants with even minor criminal convictions, including lawful permanent residents and visa holders, run into critical dilemmas when applying for benefits with USCIS. Every criminal conviction, including withholds of adjudication, must be examined thoroughly, before applying for benefits with USCIS. Many prior criminal cases can make the immigrant deportable, no matter how long ago or how minor the criminal case.

If the Supreme Court rules that Padilla vs. Kentucky is retroactive, thousands of immigrants will be able to go back and attack the prior criminal case if they were not properly instructed on the immigration consequences of the plea. Most criminal defense lawyers have little to no knowledge of immigration law. For decades, criminal defense attorneys would routinely instruct immigrant clients that a withhold of adjudication would have no negative effect on their immigration status. This is wholly untrue. Many criminal defense attorneys would give a generic instruction to their clients stating that any criminal conviction or withhold of adjudication could have a negative consequence on their immigration status. This may not be enough, and often is not, according to Padilla.

If you are a non U.S. citizen, and have ever been arrested before and pled no contest or guilty to a criminal charge, contact an attorney who practices both criminal and immigration law to determine whether your plea makes you deportable or inadmissible under the law, and whether you can go back and attack your prior plea.