On February 20, 2013, the Supreme Court decided an important case for certain immigrants and immigrant advocates, Chaidez v. United States. Chaidez focused on whether the Court's finding in Padilla v. Kentucky applied retroactively to criminal cases that were final on or before March 31, 2010. In Padilla, the Supreme Court decided that a criminal defense attorney's failure to advise a non-citizen client of the immigration consequences of a conviction constitutes ineffective assistance of counsel. Following Padilla, there was a wide split among lower state and federal courts regarding whether or not Padilla applied retroactively to convictions that were final before the decision was issued.
In reaching its determination that the Padilla decision was not retroactive, the Court considered whether or not the decision created a "new rule." The Court found that it indeed constituted a "new rule" of criminal procedure and was, therefore, not retroactive. According to the Court, Padilla "broke new ground and imposed a new obligation." The Supreme Court looked at the fact that, prior to its decision in Padilla, most state and lower federal courts had found that the Sixth Amendment right to counsel did not require attorneys to inform the clients of immigration consequences. The Supreme Court found it dispositive that Padilla had to develop new law in order to determine whether or not the deportation consequences of a conviction were covered by the Sixth Amendment right to counsel.
The Court's majority opinion was written by Justice Kagan and joined by five other justices. Justice Thomas wrote a brief concurrence, in which he made clear that he continued to believe that the Court's decision in Padilla was wrong.
Justice Sotomayor wrote a dissent joined by Justice Ginsburg. The dissent stated strongly that Padilla did not create a new rule. Rather, in Padilla, all the Court did was survey the relevant professional norms and conclude that they did, in fact, require attorneys to advise about the deportation consequences of a criminal conviction. Justice Sotomayor also noted that Padilla did not turn on a distinction between collateral and direct consequences, and instead found that any perceived distinction was not relevant for purposes of determining defense counsel's obligations. Finally, the dissent criticized the majority for seeing Padilla as a "significant and destabilizing decision," when in reality Padilla was nothing more than an application of already existing precedent regarding the obligations of defense counsel.
The Chaidez decision is certainly a disappointing one for many immigrants and immigrant rights' advocates who understand firsthand the crucial importance of a non-citizen client receiving advice regarding the immigration consequences of a criminal conviction. While Padilla affirmed the right that non-citizens have to know the consequences of a criminal conviction, Chaidez unfortunately limits the remedy for many people who suffered ineffective assistance of counsel prior to the issuance of the Padilla decision on March 31, 2010.