Ineffective Assistance of Counsel is not Retroactive

In a removal proceeding, the person to be removed sometime seeks to overturn the removal order can argue that his or her attorney failed to advise the immigration consequences of pleading guilty to certain criminal charges. It is called ineffective assistance of counsel under the Sixth Amendment of the U.S. Constitution.

The U.S. Supreme Court in Padilla v. Kentucky ruled that the Sixth Amendment requires defense attorney in criminal proceedings to inform non-US citizen clients of the deportation risks of guilty pleas. The court reasoned that Padilla's Sixth Amendment right to counsel was violated because his attorney could have easily determined that a guilty plea would make Padilla subject to deportation. The Court remanded the case to the Supreme Court of Kentucky for proceedings consistent with the opinion.

A new issue comes up in a recently determined case Chaidez v. United States. Chaidez was to be removed because she had pleaded quilt to a mail fraud in 2004. She wanted to avoid removal, so she tried to overturn her conviction with the reason that her attorney did not advise her of the consequence to plead guilty, which lead to her removal, and that was ineffective assistance of counsel under the Sixth Amendment.

When Chaidez’s case was pending, the decision of Padilla came out. The decision came out after Chaidez had received her conviction. The problem is whether Padilla decision can apply to Chaidez. After thorough analysis, the U.S. Supreme Court decided that since Chaidez’s case had already final on direct review, Padilla decision can not apply retroactively to Chaidez’s case. This decision precludes cases that have been final to use Padilla case to overturn previous criminal convictions.

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