In Padilla, in which CAC filed a brief, the Court, as CAC had urged, held that a lawyer’s misadvice as to the deportation consequences of a guilty plea fell below the standards of effective assistance of counsel guaranteed by the Sixth Amendment. The Court has repeatedly recognized that the immigration consequences of a conviction are often just as, if not more, important for a non-citizen defendant than any criminal sentence. Chaidez was convicted for her minor role in an insurance fraud scheme; unbeknownst to her, the charge to which she pleaded guilty rendered her automatically deportable. It is undisputed that had she known of the immigration consequences of her plea—which would force her out of the country in which she has legally resided for more than thirty years and away from her U.S.-citizen children and grandchildren—she would not have pleaded guilty.

On January 30, 2012, CAC filed a brief in support of Supreme Court review of Chaidez’s petition for certiorari. The brief argued that Padilla did not announce a “new rule” that imposes new obligations on the States and federal government, and thus should be applied retroactively. As the brief demonstrated, the Sixth Amendment right to counsel has always protected non-citizens just as robustly as it protects citizens. Given the severity of the deportation penalty, and the changes in federal law that have made removal virtually automatic for a large swathe of crimes, professional standards have long required lawyers to advise their clients on the immigration consequences of a conviction. When Padilla applied the Court’s usual analysis of whether certain conduct fell below the constitutionally-required minimum of effective assistance of counsel, it was simply applying an “old rule” to a new factual situation.

On April 30, 2012, the Supreme Court granted review of Chaidez’s petition as CAC had urged.

On July 23, 2012, CAC filed a brief on our own behalf as well as on behalf of habeas scholars in the Supreme Court supporting petitioner Roselva Chaidez in her appeal of the violation of her constitutional right to effective assistance of counsel as guaranteed by the Sixth Amendment.

Disappointingly, on February 20, 2013 the Supreme Court handed down a 7-2 decision holding that Padilla did create a new rule, and that Ms. Chaidez and others convicted prior to that decision would not benefit from its protections from inadequate counsel.

Justice Sonia Sotomayor echoed CAC’s argument in her dissent, writing, “Padilla did nothing more than apply the existing rule of Strickland v. Washington in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea.”