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Bloggings on Deportation and Removal

by Matthew Kolken

Supreme Court to Revisit Ruling in Padilla v. Kentucky to Determine if it Applies Retroactively

The United States Supreme Court has granted cert in a case for the purpose of clarifying whether the Court's previous decision in Padilla v. Kentucky applies retroactively to persons whose convictions became final before its announcement.  Click here to read the Petition for Writ of Certiorari. 

The Court in Padilla ruled that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.  Subsequent to the Supreme Court's decision, there has been a split in the lower courts regarding the effect of Padilla, and whether it applies retroactively.

The current case, Chaidez v. United States, arises out of the 7th Circuit Court of Appeals, which focused on the singular issue of whether Padilla created a new constitutional rule of criminal procedure.  A rule is "new" when it was not dictated by precedent existing at the time the defendant's conviction became final. 

The 7th reasoned that if Padilla created a new rule it would only apply to cases on direct review, unless one of two exceptions applies: (1) it is substantive or (2) it is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.

The 7th found that Padilla created a new rule, that an exception to non-retroactivity did not apply, reversing the District Court's decision.  The Supreme Court granted cert yesterday.

I'll be following the case closely and will keep you updated.

About The Author

Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.