The Immigration Consequences of Guilty Pleas

It's 2009 and you are an immigrant who has been charged with a crime. Your attorney advises you to plea and you follow the advice. Unfortunately, that plea deal has serious immigration consequences for you. Because that plea now renders you removable under immigration law, the government decides to initiate a deportation proceeding against you.

The Supreme Court's 2010 decision, Padilla v. Kentucky, found that lawyers have an obligation under the Sixth Amendment to advise their clients about the immigration consequences that may attach to guilty pleas. But you pled guilty in 2009, so Padilla won't do you any good unless it applies retroactively. According to a recent Supreme Court case, you're out of luck. In Chaidez v. Holder, the Court ruled that Padilla does not apply retroactively.

It may seem unfair that you don't benefit from a decision decided just one year after you pled guilty. Numerous commentators have criticized the Supreme Court's analysis and you can click here for an example if you would like to get into the legal weeds. But aside from the legal nuances associated with retroactivity, could there be another reason why the Court was reluctant to allow Padilla to apply to prior pleas?

Unfortunately, less than stellar attorney representation has been an all-too-recurring theme in immigration practice. This is not to say that there aren't good immigration attorneys available--there certainly are--but the immigration process has been plagued by bad attorneys who take advantage of a particularly vulnerable segment of the population. Immigrants regularly file ineffective assistance of counsel claims. These claims run the gamut from wholly justified to unfounded stall tactics. But regardless of their merit, each must be addressed and doing so takes considerable resources.

The same is true of claims based on Padilla and guilty pleas. If anything, adjudicating collateral attacks on a previous criminal proceeding is even more time consuming. If the Supreme Court permitted Padilla to apply retroactively, the immigration system would be faced with considerably more collateral attacks. Many of these Padilla claims might have merit but a sizable percentage will not.

"So what?" you may ask. "How can you make a resource argument when people's opportunity to avoid deportation is at stake?" The answer is that I'm not making the argument. I'm merely bringing to light a consideration that some of the Justices probably took into account even if they didn't say so. Chaidez was not a 5-4 decision along ideological lines; rather, seven Justices agreed that Padilla should not apply retroactively.

Now imagine that you're a Supreme Court Justice. The immigration system is clogged, the wait time for claim adjudications is many years, hundreds of thousands of cases are being filed in the immigration courts every year, and some sort of major reform to immigration law is likely in the near future. Would you then throw another wrench into the mix by sanctioning collateral attacks from any immigrant ordered deported on the basis of a crime he or she pled guilty to? Would it matter if the resources needed to adjudicate these claims caused delays for others?