Almost three years ago, in the landmark decision Padilla v. Kentucky, the Supreme Court acknowledged the severity of deportation and that our current immigration laws make “removal nearly an automatic result” for many noncitizens convicted of crimes.  Consequently, the Court held that a criminal defense attorney must advise noncitizen clients about the risks of deportation if they accept a plea bargain.  If the defense attorney fails to provide this advice, the noncitizen can seek to have the conviction set aside.  Such recourse brings integrity to the criminal justice and immigration systems and ensures that immigrants who reasonably rely on advice from their lawyers are not unfairly held accountable for their lawyers’ mistakes.

What makes the Supreme Court’s decision such a tough pill to swallow isn’t just that individuals cannot seek a remedy in criminal court, but also that the immigration laws fail to offer any recourse.

But this week, the Supreme Court limited the reach of Padilla v. Kentucky.  It held in Chaidez v. United States that Padilla does not apply retroactively to at least some noncitizens whose criminal cases were resolved before the Court decided the case.  In so doing, it closed the courtroom doors to countless noncitizens who had the bad luck of receiving poor legal advice from their criminal defense attorneys and of also receiving that advice before the Supreme Court’s decision in Padilla.  Not only is there no remedy in criminal court, but for many, there may be no remedy in immigration court either.

Our current immigration laws make deportation mandatory for broad classes of individuals with criminal convictions.  Even those convicted of less serious and non-violent offenses and individuals who never serve any time in jail for their crime can find themselves subject to mandatory deportation and barred from ever reentering the United States.  Under our current laws, immigration judges lack authority to consider any other factors – such as how long the person has lived in the United States, the hardships to his or her family, or the contributions the person has made to the community – in determining whether a person shall be ordered deported.  As a result, in many cases, the immigration consequences are far more severe than any criminal penalty the court may impose.

Ms. Chaidez’s situation is a case in point.  Roselva Chaidez has been a lawful permanent resident since 1977.  In 2003, she admitted to playing a minor role in an insurance fraud scheme, and she pled guilty to mail fraud.  She was sentenced to four years’ probation.  Her criminal defense lawyer failed to tell her that her conviction would make her mandatorily deportable.  She only learned of this fact when she later applied for U.S. citizenship.  Ms. Chaidez, a 30+ year legal resident now faces permanent separation from U.S. citizen children and grandchildren.

What makes the Supreme Court’s decision such a tough pill to swallow isn’t just that individuals cannot seek a remedy in criminal court, but also that the immigration laws fail to offer any recourse.  Congress may not be able to change the Supreme Court’s holding about Padilla’s retroactively, but there is much Congress can do to ensure that our country takes a measured and fair approach to who is being deported.  Immigration judges should be allowed to consider all the relevant factors in immigration court.  In Ms. Chaidez’s case, that may mean considering the fact that her criminal defense lawyer failed to advise her of the consequences of her plea bargain before she accepted it.  However, it also must mean that the severity of the crime must be considered as well as other factors, such as the length of time a person has lived in the United States, family ties and contributions to his or her community.  Justice is not served when even minor offenses lead to mandatory removal and immigration judges lack discretion to consider any other factors.  Congress must restore immigration judges’ discretion to take into account the individual circumstances of each case before taking the drastic measure of ordering a person deported.

by Beth Werlin

http://immigrationimpact.com/2013/02/22/scotus-narrows-protections-for-noncitizens-who-received-poor-legal-advice/ 

 

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