Narrowing Protection for Non Citizens Who Receive Poor Legal Advice


In 2010 the Supreme Court of the United States held that a criminal defense attorney must advise noncitizen clients about the risks of deportation if they accept a plea bargain.Thus, a noncitizen who relies on the advise of their Attorney, are not unfairly held accountable for their Attorneys’ mistakes. This decision was made after the Padilla vs Kentucky case, in which Padilla, a lawful permanent resident for over 40 years, faced deportation over a guilty plea on a drug-distribution charge. He alleged that his Attorney not only failed to advise of the consequences of entering a guilty plea but advised him not to worry about deportation since he had been living in this country so long.

Last week, the Supreme Court limited the reach of the Padilla vs Kentucky case. it held that Padilla does not apply retroactively to some noncitizens whose criminal cases were resolved before the court decided on the Padilla case. A noncitizen, who received poor legal advise before the Padilla case, can no longer benefit from it. Leaving many to face a deportation for a small criminal offense, which with our immigration laws automatically make this person removable. Not only is there no remedy in criminal court, but for many there may be no remedy in immigration court either. Ms. Chaidez is a case in point.

Roselva Chaidez a lawful permanent resident since 1977, plead guilty to two counts of mail fraud in 2004. In 2009 immigration officials initiated removal, after an application she made for Citizenship alerted them of her prior convictions. Under federal immigration law, the offenses to which Chaidez plead guilty to are “aggravated felonies”, subjecting her to mandatory removal from this country. To avoid removal, she sought to overturn the conviction contending that her former Attorney failed to advise her of the guilty plea’s immigration consequences. But she was unable to benefit from the Padilla case since her case had been finalized before the Padilla ruling.

There may not be anything she can do to change the courts decision, but an immigration judge should be allowed to consider all the relevant factors in immigration court. In the Chaidez case, considering that her  Attorney failed to advise her of her mandatory removal for the guilty plea, her time in the United States and her family ties. Justice is not served when a minor offense can lead to mandatory removal.  Under our current laws, immigration judges lack authority to consider any other factors in determining whether a person shall be ordered deported.  Congress needs to restore immigration judges’ discretion to take into account the individual circumstances of each case before ordering a person deported.

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