deportation

Chaidez v. United States (11-820)

in

Oral argument:

October 30, 2012

Court below:

United States Court of Appeals for the Seventh Circuit

In 2003, Roselva Chaidez pleaded guilty to an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), but her lawyer failed to inform her that her plea made her eligible for deportation. Subsequently, the Supreme Court held in Padilla v. Kentucky that the right to effective assistance of counsel includes a duty to inform defendants of deportation consequences of a plea deal if the consequences are clear. Nevertheless, the Seventh Circuit Court of Appeals held that Padilla did not apply retroactively to Chaidez’s conviction. Chaidez argues that the Supreme Court should hold that Padilla was dictated by precedent (and therefore not a new rule) and is retroactively applicable to her case. The United States counters that Padilla was not dictated by precedent (and therefore was a new rule) and is not retroactively applicable to Chaidez’s conviction. Chaidez argues that Padilla should be retroactively applied because to hold otherwise would undermine the obligation of prosecutors to “seek justice,” which requires using their knowledge of immigration consequences when considering to alter convictions. In response, the United States counters that retroactively applying Padilla would allow defendants to avoid the consequences of their convictions based on a minor error by a lawyer.

Questions Presented:

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.

The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

[Questions Presented]
[Issue]
[Facts]
[Discussion]
[Analysis]

Issue

Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla?

Written by:

Ethan Roman

Dan Youngblut

Edited by:

Charlotte Davis

Additional Resources:

· Agence France-Presse, Supreme Court will rule on if deportation ruling is retroactive, The Raw Story.

· The New York Times, Court Requires Warning about Deportation Risk, Adam Liptak.

· Wex: Immigration Law.

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Vartelas v. Holder (10-1211)

in

Oral argument: Jan. 18, 2012

Appealed from: United States Court of Appeals for the Second Circuit (Sept. 9, 2010)

Petitioner Panagis Vartelas, a Greek citizen and lawful permanent resident of the United States, pleaded guilty to counterfeiting and was convicted in 1994. In 2003, following a brief trip to Greece, Vartelas received notice to appear for removal proceedings. The immigration judge ordered Vartelas’s deportation, after deeming Vartelas inadmissible under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Vartelas argues that application of this 1996 Act to his 1994 crime violates the presumption against retroactivity and the reasonable expectations he had when entering his guilty plea. Respondent Attorney General Eric Holder argues that Vartelas’s case does not have a retroactive effect because it penalizes acts conducted after the statute’s enactment: Vartelas’s decision to leave and re-enter the United States. This case affects lawful permanent residents who were convicted of crimes prior to the Act’s enactment. The Supreme Court’s decision could restrict their ability to travel internationally, which in turn could damage their ability to maintain family ties or fulfill religious obligations.

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Kawashima v. Holder (10-577)

in

Oral argument: November 7, 2011

Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 4, 2010)

AGGRAVATED FELONY, DEPORTATION, FRAUD, DECEIT, LAWFUL PERMANENT RESIDENT

The Immigration and Naturalization Service determined that the Petitioners, Akio and Fusako Kawashima, are subject to deportation because they have been convicted of aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i). The Kawashimas had previously pled guilty to crimes related to the filing of a false tax statement. The United States Court of Appeals for the Ninth Circuit upheld the Board of Immigration Appeals’ determination that the Kawashimas are deportable. The Kawashimas argue that their crimes are not aggravated felonies because they do not require fraud or deceit as an element, and that deportable tax crimes only include tax evasion. The Respondent, Attorney General Eric Holder, argues that the Kawashimas’ guilty pleas included fraud by implication. This case will impact the methods the Internal Revenue Service uses to enforce the tax code, and may have a profound impact on immigrants who plead guilty to tax crimes.

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Judulang v. Holder (10-694)

in

Oral argument: Oct. 12, 2011

Appealed from: United States Court of Appeals for the Ninth Circuit (Sept. 17, 2007)

After Petitioner Joel Judulang, a lawful permanent resident of the United States, was convicted of a deportable offense, the Board of Immigration Appeals determined that he was not eligible for a discretionary waiver of deportability under Section 212(c) of the Immigration and Nationality Act. On its face, Section 212(c) applies only to lawful permanent residents who are excludable when they attempt to enter the country, rather than to residents convicted of deportable offenses while already in the country. However, the Board of Immigration Appeals has previously allowed some permanent residents convicted of deportable offenses to apply for the Section 212(c) discretionary waiver. Petitioner Judulang asserts that he should be allowed to take advantage of the waiver, since his deportable offenses would render him excludable if he tried to re-enter the country. Judulang further argues that the Board of Immigration Appeals' change in Section 212(c) policy regarding deportable and excludable offenses is impermissibly retroactive and facially unconstitutional. The Department of Justice argues that the Board of Immigration Appeals has good reason to require a close textual similarity between a charged ground of deportability and a waivable ground of excludability, and that its policy is not impermissibly retroactive because it does not reflect a change in previous law. The Supreme Court’s decision in this case will mean the difference between amnesty and deportation for many lawful permanent residents convicted of deportable offenses.

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Carachuri-Rosendo v. Holder (09-60)

in

Appealed from the United States Court of Appeals for the Fifth Circuit (May 29, 2009)

Oral argument: March 31, 2010

IMMIGRATION, REMOVAL, DEPORTATION, AGGRAVATED FELONY

Under the Immigration and Nationality Act, a deportable lawful permanent resident is ineligible to petition the Attorney General for cancellation of removal proceedings if he has a conviction for an “aggravated felony.” Congress defines “aggravated felony” as including any felony under the Controlled Substances Act. Under that Act, simple possession of most narcotics is a misdemeanor. However, possession of a controlled substance by an individual who has a prior conviction for possession is a felony. This case will resolve a circuit split in deciding whether a deportable alien who has been twice convicted in state court for non-felony simple possession is ineligible to seek cancellation of removal proceedings on the theory that the alien has been, for the purposes of federal immigration law, convicted of an “aggravated felony” because he could have been prosecuted for felony recidivist-possession under federal law.