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via @NIJC: Supreme Court finds no retroactive protection for bad legal advice

February 21, 2013
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By Phil Roeder via Flickr Creative Commons

Contact: Tara Tidwell Cullen
(312) 660-1337

Congress Should Restore Judges’ Discretion to Determine Fate of Immigrants With Convictions From Long Ago

WASHINGTON, D.C. (February 20, 2013) – In a 7-2 ruling, the U.S. Supreme Court has found that before the Court’s 2010 ruling in Padilla v. Kentucky, noncitizens had no established right to be advised of the deportation consequences of criminal pleas. Therefore, the Supreme Court refused to allow 56-year-old grandmother Roselva Chaidez relief from her 2004 guilty plea.

“If Roselva Chaidez is deported, she will be permanently separated from her children and grandchildren, who are all U.S. citizens,” said Heartland Alliance’s National Immigrant Justice Center (NIJC) Director of Litigation Charles Roth, co-counsel in the case. “It is now in the hands of the Obama administration and Congress to keep this family together, as well as hundreds of other families in similar situations who at least deserve consideration of whether a run-in with law enforcement more than a decade ago outweighs the good they have since contributed to our society,”


Since the 1980s, Congress has whittled away most discretion on the part of immigration judges. Under U.S. immigration law, even minor, non-violent offenses can subject noncitizens to near-automatic deportation. In light of the Chaidez decision, NIJC calls on the Obama administration and Congress to restore judicial discretion as part of any efforts to reform our broken immigration system and create a system that respects families and equal access to justice. Immigration judges must be allowed to have more authority in determining whether long-time members of our communities who pose no danger, have already paid their dues to society, and who often have raised families and built businesses, should be allowed to remain in the United States rather than be subject to the cruelty of permanent exile.

Ms. Chaidez’s criminal defense attorney failed to tell her in the early 2000s that a guilty plea, in which she admitted to playing a minor role in a scheme involving insurance fraud, would make her an “aggravated felon” under immigration law. She was sentenced to four years’ probation. A lawful permanent resident, she did not realize her conviction made her deportable until she applied for U.S. citizenship. For Ms. Chaidez, deportation will mean permanent separation from her U.S. citizen children and grandchildren. Ms. Chaidez asked the Supreme Court to find that Padilla applied to her case and to vacate her conviction so that she could have had an opportunity to defend herself with a full understanding of the immigration consequences at stake in her criminal case.

Justice Kagan, writing for the majority, described Padilla as recognizing the “common sense” point that a “reasonably competent lawyer will tell a noncitizen client about a guilty plea’s deportation consequences.” However, she wrote, it was not clear before the 2010 Padilla decision that the constitution required a criminal attorney to give that advice. Because Ms. Chaidez’s constitutional rights were not clear in 2004, the Supreme Court refused to apply the Padilla decision to her case.

“To build a better immigration system, the U.S. government must permit immigration judges to consider the myriad circumstances individuals face as they attempt to build their lives in the United States, rather than apply restrictive laws that will harm families like Ms. Chaidez and hurt all of our communities,” said NIJC Executive Director Mary Meg McCarthy.

Ms. Chaidez is represented by lead counsel Jeffrey Fisher of the Stanford Law School Supreme Court Clinic; Roth, Claudia Valenzuela, and Sarah Rose Weinman of NIJC; Gerardo Gutierrez of the Law Offices of Gerardo Gutierrez; Thomas Goldstein and Kevin Russell of Goldstein & Russell, P.C.; and Valerie Marsh, Kathleen Sanderson, and Angela Vigil of Baker & McKenzie LLP. Five “friend of the court” briefs were filed with the Supreme Court in support of Ms. Chaidez’s arguments.


U.S. Supreme Court ruling and Sotomayor dissent in Chaidez v. United States

Briefs and other case documents

Link to this statement:

Heartland Alliance’s National Immigrant Justice Center is a Chicago-based nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. For more information visit

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