Today, the Supreme Court decided Chaidez v. United States. As a result of this decision, many people will be deported unfairly. Chaidez addresses issues that were left unresolved by Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In Padilla, the Supreme Court held that it violated the Sixth Amendment for a criminal lawyer to fail to advise a non-citizen about the potential immigration consequences of a proposed plea agreement. After Padilla was decided, many non-citizens facing deportation because of convictions began to seek to have their convictions overturned on the basis that they pleaded guilty without being advised about the immigration consequences of their conviction. An issue arose as to whether or not Padilla could be applied retroactively – whether the decision could be applied to criminal cases that occurred prior to the Padilla decision. Unfortunately, the Supreme Court decided that Padilla should not be applied retroactively.
The reason that I say that Chaidez will result in unfair deportations is that if a non-citizen pleaded guilty before Padilla without being advised of the immigration consequence of their conviction, they will no longer be able to benefit from Padilla. This means that even though non-citizens did not understand the full consequences of pleading guilty, they are bound by their guilty plea. Thus, they can be deported for their conviction, even though they did not understand that they could be deported for their conviction. For something the Supreme Court found to be constitutional, it is terribly unfair.
When I do consultations, I often meet people who are ineligible for relief from removal because of their convictions. I always advise people in this situation to consult with a criminal lawyer about the possibility of having their conviction vacated. If a criminal lawyer thinks that the conviction can be vacated, then I will usually be retained to request that the Immigration Judge delay issuing a deportation order until there is a decision on the motion to vacate the criminal conviction. As a result of Chaidez, there will be less people that will be able to do this.