For a non-citizen living in the United States, getting arrested and charged with a crime is a very different story than it is for a citizen. The dizzying array of immigration-related penalties of criminal convictions includes detention, ineligibility for immigration benefits including lawful permanent residence (“green card” status) and naturalization and – ultimately – deportation. These risks are present for those lawfully residing in the United States as well as those who are undocumented.
A number of CAIR Coalition clients, for example, are long-time green card holders with families in the United States who face the very real possibility of deportation because of a criminal conviction. Since Congress enacted sweeping changes to the immigration laws in 1996, a wide range of convictions can trigger deportation proceedings, including offenses as minor as possession of a small amount of marijuana. Those crimes defined as “aggravated felonies” – an inaptly named category that includes misdemeanors and non-violent offenses – trigger automatic deportation with no opportunity for review by an immigration judge.
The threat of deportation looms much larger than the risk of jail time for many non-citizens involved in the criminal justice system. In 2010, the Supreme Court recognized this reality in Padilla v. Kentucky, holding that criminal defense attorneys are constitutionally obligated to advise their clients about the deportation risks of a guilty plea. The decision offered hope to many who had un-knowingly pled guilty to criminal offenses that triggered deportation and forced separation from homes, families, and communities.
In its recent decision in Chaidez v. United States, however, the Court significantly undercut Padilla’s promise. The Court held in Chaidez that Padilla does not apply retroactively to convictions finalized before its March 31, 2010 decision date. Despite the fact that Padilla was decided under a straightforward application of the Court’s test for determining ineffective assistance of counsel, the justices found that Padilla announced a “new rule” of criminal procedure and therefore does not apply retroactively pursuant to Teague v. Lane. The Chaidez decision means that countless individuals who pled guilty to crimes without any advice regarding the risk of deportation are precluded from vindicating their rights. Although these individuals were clearly denied the effective assistance of counsel, they now find themselves barred from remedying that ineffectiveness because their convictions fall on the wrong side of March 31, 2010.
Because our immigration laws mandate detention and deportation for such a wide variety of offenses, the post-conviction remedies stripped away by Chaidez are often the only mechanism available to defend against crime-based deportation. The story of Juan Lopez, profiled for the Supreme Court in the briefing materials for Chaidez, illustrates this loss. Mr. Lopez came to the United States from Cuba when he was ten years old. The United States is home to him and his entire family, including his wife, four daughters, and five grandchildren. Like many lawfully present immigrants, Mr. Lopez is a decorated military veteran. In 2010, he filed a motion to vacate the plea of guilty he entered twenty-five years ago after being charged with a one-time cocaine sale. His criminal defense attorney had failed to inform him that he could face deportation because of the conviction, a violation of his right to the effective assistance of counsel as described in Padilla. Mr. Lopez now faces deportation because of this decades-old conviction. For him, like so many others, the mandatory deportation provisions of the immigration law left a post-conviction motion as his only chance to remain in the United States with his family. The Chaidez decision precludes his ability to bring this motion, upending this last chance for grace.
Chaidez marks an erosion of immigrants’ rights at a time when those rights are already far too limited. For non-citizens with current or previous involvement in the criminal justice system, deportation is too often an inevitable outcome, even for those with deep ties to our communities. This decision makes it all the more pressing that our lawmakers include in any immigration reform package measures that will: 1) narrow the category of crimes that trigger deportation; and 2) restore full discretion to immigration judges to consider the scope of an individual’s life before determining whether deportation is an appropriate penalty.
Although the CAIR Coalition is disappointed by the Court’s decision in Chaidez, we remain hopeful that those facing deportation on the basis of criminal convictions that pre-date Padilla still have options available to them. First, while Chaidez announced a ruling on the federal level, state courts remain free to render their own decisions with regard to the retroactive application of Padilla. In Maryland, for example, the state’s highest court has already ruled that post-conviction claims for relief based on Padilla may be brought even for convictions secured before March 31, 2010. Second, even in states that are in accord with the Chaidez decision, prosecutors maintain the discretion to waive the application of Teague’s anti-retroactivity rule and allow claims under Padilla to proceed regardless of the date of the conviction. Third, Chaidez leaves open the possibility that individuals whose attorneys incorrectly advised them regarding the deportation risks of a pre-Padilla plea – as opposed to failing to advise at all – may proceed with their claims. And finally, individuals challenging federal convictions may still be able to benefit from procedural arguments that the Court did not address in Chaidez.
For Mr. Lopez and so many like him, Chaidez serves as a reminder that our immigration laws and policies routinely result in miscarriages of justice. In the aftermath of Chaidez we call on federal and state prosecutors to exercise their discretion to waive Teague’s anti-retroactivity principle and allow post-conviction motions brought under Padilla to advance. And, ultimately, we urge our lawmakers to fix our broken immigration system.
