Wednesday, February 6, 2013

Plead Out, Get Deported: The Right to Effective Council

by Michelle Holland, Editor-in-Chief

The Supreme Court has taken on many groundbreaking cases this term, daring to clarify issues regarding same-sex marriage, immigrant rights, and habeas corpus petitions.[1]  Of particular interest is the case Chaidez v. United States.[2]  This case deals with non-citizen rights following a criminal conviction or guilty plea.[3]  This is of particular importance because once non-citizens are convicted or plead guilty to a crime, they can be deported.[4]  In 2003, Chaidez plead guilty to mail fraud and was subsequently deported.[5]  In 2010, she filed a motion for a writ of coram nobis, asserting that her attorney was ineffective for not alerting her that she would be deported if she plead guilty.[6] 

While her motion was being considered, the court held in Padilla v. Kentucky that council must inform his or her client that a guilty plea can lead to deportation in order to provide effective council.[7]  The district court in turn vacated Chaidez’s conviction holding that Padilla interpreted the rule of an earlier case.[8]  The appellate later court reversed the district court’s ruling and reinstated her conviction, holding that Padilla was a new rule that could not be applied retroactively.[9] 

The Supreme Court’s decision to address the rights of non-citizens residing in the United States is extremely important.  The Department of Homeland Security estimates that approximately 19.7 million non-citizens are living legally in the United States.[10]  This figure includes non-citizens that have been granted asylum from violence and torture in their home countries.[11]  This decision will determine whether the law will force council to give their client the information necessary to truly make an informed decision about their future and will provide non-citizens with the option to weigh the pros and cons of a plea bargain, knowing they could be deported for it.[12]  If the Supreme Court decides to interpret Padilla as an application of a prior rule, it will apply to cases like Chaidez where a non-citizen was not fully aware of her rights and made a decision that sent her back to the country she escaped years ago.[13]  The Supreme Court is obligated to fully pursue justice.[14]  This term we will learn whether the Supreme Court fulfills that obligation by holding that non-citizens have the right to effective council and the right to know the consequences of their decisions.

[1] Lisa Schmidt, Supreme Court 2012-2013 Term Preview, Legal Information Institute, (last visited Feb. 6, 2013).
[2] Id.
[3] Id.
[4] Id.
[5] See Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11-820).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Department of Homeland Security Office of Immigration Statistics, Estimates of the Legal Permanent Resident Population in 2011,
[11] Id.
[12] Ethan Roman & Dan Youngblut, Chaidez v. United States, Legal Information Institute,
[13] Id.
[14] Id.