By Tony Mauro

The U.S. Supreme Court agreed on Monday to repair the growing rift among lower courts over the retroactive effect of its landmark ruling that requires lawyers to advise their clients about the possible deportation consequences of pleading guilty. 

The justices added to their fall docket the case of Chaidez v. United States, which poses the retroactivity issue raised by the Court’s 2010 ruling in Padilla v. Kentucky. In that decision, a 7-2 majority found that when a lawyer fails to tell a client that a guilty plea as part of a plea agreement could expose the client to deportation, it amounts to ineffective assistance of counsel. 

Ever since, courts have divided over whether the Padilla decision announced a new rule – and is therefore not retroactive – or merely applied old rules to new facts in a way that would be retroactive and benefit defendants whose cases ended before the Padilla decision came down. That sometimes confounding standard for deciding retroactivity was established by the Court’s 1989 ruling in Teague v. Lane. In the case before the Court, the U.S. Court of Appeals for the 7th Circuit ruled against retroactivity. The 10th Circuit has also ruled that way, but the 3rd Circuit and the highest court in Massachusetts have ruled in favor of retroactivity. The issue is pending before a dozen federal district courts. 

Federal and state courts are “openly and intractably divided” over the retroactivity issue, Stanford Law School professor Jeffrey Fisher told the Court in his petition for the defendant asking for retroactive application of the Padilla decision. Underscoring the importance of the issue, Fisher’s adversary in the case, Solicitor General Donald Verrilli Jr., agreed that the Court should grant review in the case – even though Verrilli argues that Padilla should not apply retroactively. 

“Many non-citizens are now attempting to overturn their long-final convictions” based on the Padilla ruling, Verrilli told the Court. The wave of cases, Verrilli said, threatens “society’s interest in the finality of criminal convictions,” and could have a “significant impact” on federal enforcement of immigration laws against deportable individuals. 

But supporters of retroactivity told the Court of other harmful effects of the division over the issue. Noncitizens who have the misfortune of living in jurisdictions where retroactivity is not allowed face “deeply unjust and damaging” inequities that separate families, according to a brief filed on behalf of the National Association of Criminal Defense Lawyers and several immigration rights groups. “The conflict creates a regrettable disuniformity in the enforcement of federal immigration law,” wrote the brief’s author Jeffrey Trachtman of Kramer Levin Naftalis & Frankel in New York. 

In a separate brief Elizabeth Wydra of the Constitutional Accountability Center argued that for years before Padilla was decided, changes in immigration law made deportation a more pervasive tool in immigration cases. As a result, she wrote, “prevailing norms of professional practice” have long required lawyers to advise their clients about possible deportation, thereby making Padilla retroactive. 

In the case the Court has agreed to hear, Mexican-born Roselva Chaidez, a lawful permanent resident of Chicago since 1977, became involved in a scheme to defraud auto insurance companies. She was indicted on mail fraud charges and eventually accepted a plea deal in 2004. Her lawyer did not advise her beforehand that the charges she pled to amounted to aggravated felonies that could trigger her deportation. When Chaidez applied for U.S, citizenship in 2007, immigration officials found out about her fraud convictions and initiated deportation proceedings. She filed a coram nobis petition before the district court where she had pled guilty, seeing to overturn the convictions because of ineffective assistance of counsel. While her case was pending, the Supreme Court ruled in Padilla, and she has been trying ever since to benefit from the decision.