The 6th Amendment protects non-citizens’ right to effective counsel–and always has protected it

Case Update. On Thursday, November 1st, the Supreme Court is scheduled to hear oral arguments in Chaidez v. United States, after postponing its Tuesday sitting due to Hurricane Sandy.  

Chaidez v. United States is an important case raising the question of whether the protections against constitutionally deficient assistance of counsel applied in the Supreme Court’s Padilla v. Kentucky ruling apply retroactively.  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. 

Note: This post draws from CAC’s case page on Chaidez v. United States. Read more about upcoming cases.

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