Kevin Johnson Immigration

Posted Fri, November 2nd, 2012 2:27 pm, on Scotusblog.com

After a two-day delay because of the devastating storm Sandy, yesterday the Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010).  In that blockbuster decision, the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement.

Jeffrey L. Fisher of the Stanford Supreme Court Litigation Clinic argued the case on behalf of petitioner Roselva Chaidez.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to Chaidez, but the author is not affiliated with the firm.]  Michael Dreeben, Deputy Solicitor General, argued the case for the United States.

The argument was a lawyerly-like exercise in appellate advocacy, with the Justices skillfully probing the legal arguments concerning a collateral attack on a criminal conviction, as well as the policies implicated by the retroactive application of a decision of the Supreme Court.

The questioning of the Justices centered on the application of the Court’s 1989 decision in Teague v. Lane, in which it held that a new procedural rule could not be applied retroactively to a collateral attack on a criminal conviction.  Fisher contended that the post-Teague cases addressing with ineffective assistance of counsel claims did not create new rules – and neither did the Court in Padilla v. Kentucky.  Rather, the Court simply was applying the test outlined for ineffective assistance claims in Strickland v. Washington (1984).

The Chief Justice, with whom Justice Scalia seemed to agree, chimed in early to the effect that Padilla was surely a surprise – and a new rule — to the courts of appeals, which had unanimously rejected the position adopted by the Court.  Along these lines, Justice Kagan suggested that Padilla created a new rule by extending ineffective assistance claims to cover advice on possible collateral consequences of criminal convictions.   On a related note, Justice Alito seemed worried about how far Padilla extended in requiring counsel to raise possible collateral consequences of a criminal conviction, such as whether it might require discussion of the potential loss of a professional license.

Fisher emphasized that almost all of the lower court decisions contrary to Padilla predated the 1996 immigration reforms, which toughened the removal provisions of the U.S. immigration laws and made the removal consequences of a criminal conviction crystal clear.  Justice Kagan acknowledged that, even before 1996, a reasonable lawyer might discuss with a client the possible deportation consequences of a criminal conviction.  By 2001, the Court itself – in INS v. St. Cyr (2001) — observed in so many words that any competent lawyer would give his client advice on the deportation consequences of a criminal conviction in making a plea deal.

Arguing for the United States, Dreeben contended that Padilla in fact created a new rule and could not be applied retroactively by Chaidez in collaterally attacking her conviction.  Testing that assertion, Justice Sotomayor observed that before Padilla an attorney could not misrepresent the facts to the client, so that only part of Padilla was new.  She asked whether the government’s position was that changing professional norms on which an ineffective assistance claim was based would always constitute a “new rule.”  Justice Kennedy, mentioning Tom Paine (and also at other times throwing in references to MacPherson v. Buick Motor Co. and Erie Railroad Co. v. Tompkins), suggested that Padilla was based on “common sense.”  He acknowledged that the American Bar Association now requires defense counsel to both “determine,” and “advise” a client about, the immigration consequences of pleading guilty.  In addition, Federal Rule of Criminal Procedure 11 has been amended to require judges to advise defendants of the possible deportation consequences of a criminal conviction.

As one might guess of a former civil procedure professor, Justice Ginsburg questioned whether it mattered that the criminal conviction was federal.  Another former law professor, Justice Breyer, seemed to agree.  Unlike the state conviction at issue in Teague, she reasoned, there are no comity concerns presented in a case – such as this one – involving collateral review of a federal conviction.  She questioned Dreeben on whether Teague had ever been applied to federal convictions; he replied that it had not.  Justice Kennedy countered that, in addition to comity, repose was a concern to the Court in Teague.

Responding to the mention of repose as a policy issue, Dreeben suggested that Chaidez had waited too long to challenge the plea bargain.  However, she filed the coram nobis action shortly after the U.S. government instituted removal proceedings against her, thereby making the immigration consequences of her plea clear.

From my reading of the transcript, I found it hard to tell how the Court might ultimately rule, although I admittedly was more convinced before than after the argument that Chaidez would prevail.  The argument was not particularly “ideological” in nature; instead, the Justices genuinely seemed to be trying to grapple with the precedent and the practicalities of its ruling in the case at hand, as well as the policy questions implicated by the case.  Such careful deliberation of the individual case is precisely why it is difficult to predict how the Court will decide an immigration case.  Legal doctrine, rather than ideological tilt, seems to be of critical importance in the immigration decisions of the Roberts Court.

(Nov. 2, 2012, 2:27 PM), http://www.scotusblog.com/2012/11/argument-recap-a-lawyers-puzzle-the-retroactive-impact-of-padilla-v-kentucky/