Because of Hurricane Sandy, the oral arguments in the Chaidez case, which presents the question of whether Padilla can be applied retroactively, is scheduled to take place tomorrow, having been moved from Tuesday, the day on which they were originally set to take place.
I will post the transcript of the argument and my thoughts on it once I have had a chance to digest the proceedings.
The Supreme Court will determine this Friday whether to grant certiorari in the Chaidez matter, the case in which the Seventh Circuit held that Padilla does not apply retroactively. Presumably there is already a pool memo floating around the Court in which a clerk has made a recommendation as to whether cert. should be granted. The Government has already made up its mind, however, having informed the Court that it agrees with the Petitioner (Chaidez) that cert. should be granted to resolve the Padilla retroactivity issue.
Aside from Chaidez, it will be interesting to see how many cert. petitions now pending before the Court will be “held” by the Court for “GVR” (grant, vacate and remand) treatment in light of its decision in Chaidez — assuming, of course, the Court does grant cert. on Friday. It will also be interesting to see if Justice Kagan will have to recuse herself because, perhaps, she might have represented the Government back when the Padilla case was before the Court (the Government filed an amicus brief in Padilla urging the Court to affirm the Supreme Court of Kentucky; yet another example of the current administration’s cramped and antagonistic view of immigrants’ rights ). Should Justice Kagan have to recuse herself, there is a very real possibility that the Court may deadlock on the retroactivity issue, in which case the Seventh Circuit’s decision would be affirmed. Not a good scenario for immigrants or their counsel. The unlikely savior in such a situation may be the Chief Justice, however. I say this only because the Chief Justice has indicated recently a discomfort with the Court’s rightward trajectory, not to mention the fact that he joined the majority in Vartelas, the Court’s recent decision which, in effect, limited the applicability of the draconian anti-immigrant legislation that is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.
For those who are interested in reading the cert. materials in Chaidez, they are available here via the SCOTUS blog website.
I apologize again for the delay in posting. Things have been hectic around here, both work-wise and life-wise. For those of you who follow developments with Padilla retroactivity, this is probably old news. But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively. Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog. (See posts here and here.) The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition. Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.
I will have more to say about both decisions soon. Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.
Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity. Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court? If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?