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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.

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.

Moncrieffe v. Holder (11-702)

in
Oral argument: 
October 10, 2012
Court below: 
United States Court of Appeals for the Fifth Circuit

In 2009, Adrian Moncrieffe, a Jamaican permanent resident of the United States, was arrested while in possession of 1.3 grams of marijuana. Moncrieffe pleaded guilty in a Georgia court to possession of marijuana with intent to distribute under Ga. Code § 16-13-30(j)(1) and was sentenced to five years of probation. In 2010, the Department of Homeland Security successfully brought removal proceedings against Moncrieffe arguing that his conviction in state court corresponds with an aggravated felony, which made him removable under the Immigration and Nationality Act. Moncrieffe appealed to the Board of Immigration Appeals, which upheld the lower court’s decision. After the United States Court of Appeals for the Fifth Circuit denied review, Moncrieffe filed a petition for a writ of certiorari with the United States Supreme Court.

Moncrieffe argues that his conviction does not correspond with an aggravated felony because the conduct leading to his conviction instead corresponds with a federal misdemeanor. Holder argues that a state conviction for possession of marijuana with the intent to distribute constitutes an aggravated felony. This decision could impact how immigration deportation cases are decided and place stricter limits on the Attorney General’s discretion to seek removal. This decision could also impact how criminal cases are conducted (e.g. whether to go to trial, to plead guilty, to admit evidence) and how courts construct state law in accordance with federal law, specifically in immigration matters.

Questions Presented: 

Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.

Issue(s)

Whether, when applying the categorical approach to determine whether a non-citizen should be removed, a conviction under a provision of state law that encompasses both felony and misdemeanor conduct, which lacks the specifics of the underlying conduct, should be treated as a aggravated felony rendering the non-citize

Written by: 
Alfonso Dulcey
Ali Paradis
Edited by: 
Brooks Kaufman
Additional Resources: 

Additional Sources

Holder v. Gutierrez (10-1542) & Holder v. Sawyers (10-1543)

in

Oral argument: January 18, 2012

Appealed from: United States Court of Appeals for the Ninth Circuit (Jan. 24, 2011)

IMMIGRATION, STATUTORY CONSTRUCTION, SECTION 1229b, CANCELLATION OF REMOVAL

In Holder v. Gutierrez and Holder v. Sawyers, the Supreme Court will determine whether aliens may impute their parents’ time spent lawfully residing in the United States to satisfy residency requirements for cancellation of removal under Section 1229b. In both cases, the individuals entered the United States as children, lived with their legal permanent resident parents, and later became inadmissible due to violations of the law. Attorney General Eric Holder argues that the plain language of 1229b does not allow imputation, and that allowing imputation would be contrary to congressional intent. On the other hand, Respondents Gutierrez and Sawyers contend that Congress intended the Immigration and Nationality Act to preserve family unity. They argue that interpreting the statute to disallow imputation would be unreasonable and contrary to congressional intent. If the Supreme Court upholds the imputation rule, aliens who resided with their legal permanent resident parents as minors would be able to impute the their parents’ residency period to satisfy the requirements for cancellation of removal under 1229(b).

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.

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.

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.

Flores-Villar v. United States (09-5801)

in

Oral argument: Nov. 10, 2010

Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 6, 2008)

EQUAL PROTECTION, GENDER DISCRIMINATION, CITIZENSHIP, IMMIGRATION

After his conviction for importing marijuana in 1997, Ruben Flores-Villar was deported to Mexico. Flores-Villar subsequently reentered the United States on several occasions, leading to his conviction under 8 U.S.C. § 1325 for being a deported alien found in the United States. Flores-Villar was born in Mexico, out of wedlock, to a United States citizen father and foreign mother. Under 8 U.S.C. §§ 1401 and 1409, United States citizen fathers of non-marital children born abroad may only transmit United States citizenship if the father had resided in the United States continuously for at least five years after age fourteen. On the other hand, United States citizen mothers with foreign-born non-marital children are only required to have one year residence in the United States to transmit citizenship. Flores-Villar challenged his Section 1325 conviction on the grounds that the differential residency requirements of 1401 and 1409 make an impermissible classification based on gender that resulted in his alien status. The appeals court affirmed Flores-Villar's conviction and the Supreme Court granted certiorari to determine whether the gender-based differentiation in 8 U.S.C. §§ 1401 and 1409 is constitutionally permissible.

Temporary Protected Status (TPS)

in

Temporary Protected Status (TPS) is a temporary immigration status granted to nationals of certain countries who are already in the United States. During the designated period, these individuals may obtain travel and employment authorization, are not removable from the United States and cannot be detained by the Department of Homeland Security. TPS does not lead to permanent resident status (a green card), but a TPS beneficiary may immigrate permanently under another provision of law if qualified.

preference relative

in

Preference relatives are certain family members of a U.S. citizen who are seeking to immigrate to the United States based on their relationship to the U.S. citizen. There are yearly limitations on family preference immigrants and the relatives in this category must often wait several years before an immigrant visa becomes available. The available visas are issued in the order in which the petitions were filed (the priority date).

I-94 card

in

Nonimmigrant visitors entering the United States with a visa are required to complete a Arrival-Departure Record (CBP Form I-94) or the Crewman Landing Permit (CBP Form I-95). The Form I-94 shows the date of arrival in the United States, the date when the authorized period of stay expires (the “Admitted Until” date), and the class of admission.

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