Tag Archives: Immigration Consequences

Padilla Retroactivity Making Another Trip to the Supreme Court?

Earlier this month the Ninth Circuit Court of Appeals decided the case of United States v. Chan.  That case involves a longtime U.S. green card holder and British national who is trying to get her prior convictions for perjury overturned.  The argument is that the lawyer who represented the green card holder misled her on what would happen to her immigration status if she decided to plead guilty, which she ultimately did.

The convictions at issue are old, dating back to 1993, but they are surfacing now because the immigration authorities recently initiated deportation proceedings against the green card holder, relying on the 1993 convictions.

The issue in the case is whether the green card holder is entitled to postconviction relief because her former attorney misled her about the immigration consequences of her prior convictions.  If she does, then there is a chance she may also be able to avoid deportation.

The district/trial court said no but the appeals court disagrees.  The appeals court rules that the green card holder is allowed to rely on and benefit from a Ninth Circuit decision that came out after the green card holder was convicted of perjury.

Generally, decisions that are issued after the event for which one seeks relief cannot be applied retroactively.  But there are exceptions to this rule, and in some cases the rule just doesn’t apply.  Here, the green card holder convinced the appeals court that the rule of non-retroactivity did not apply to the decision that she says is her key to overturning her perjury convictions.  That decision is United States v . Kwan, 407 F.3d 1005 (9th Cir. 2005).

There was a smattering of opinions in this case among the three judges who were on the appellate panel.  One judge (Bybee) agreed that Kwan could be applied retroactively but said that the green card holder could still benefit from Kwan on the basis of stare decisis — the latin phrase for “to stand by things decided” — because the two cases are identical.  When applied to court decisions this principle signifies that prior court decisions should control cases that come after it.  What Justice Roberts once likened to a judge who just calls balls and strikes (Roberts placed himself in that category of judges).

Another judge (Ikuta) disagreed with the majority’s retroacitivity analysis.  Ikuta acknowledged that the case before the court was a “sympathetic” one but thought the majority came out wrong in its legal analysis.

In any event, the significant aspect of the Ninth Circuit’s decision in Chan, aside from the benefit it confers to our green card holder, is that it deepens the split among the federal appeals courts on whether decisions making it unlawful for an attorney to affirmatively misadvise a client on immigration consequences can be applied retroactively.  I know, an issue that sounds like something only a lawyer, or a lawyer’s lawyer, would get excited about.  But its implications are considerable given that immigration continues to remove record numbers of foreign nationals from this country come hell or high water.  Right now, one appellate court has said yes to retroactivity (the Second Circuit), and another one has said no (the Seventh Circuit).  If you’re keeping score, that is 2 for retroactivity and 1 for non-retroactivity.

The existence of a circuit split also means that it makes it more likely that the Supreme Court will eventually step in to resolve the disagreements among the courts.  It did so once already on a very similar issue and ruled against retroactivity.  Might it do the same thing this time around?

Rasheed: Divided Fifth Circuit Panel Finds Counsel Ineffective Under Padilla But No Harm

Now that the Supreme Court has decided that Padilla cannot be applied retroactively, the lower courts are, as expected, trying to figure out what set of circumstances merits relief under Padilla — that is, when does a foreign national have a claim for ineffective assistance of counsel under the Sixth Amendment because his attorney did not give him the correct or any advice on the immigration consequences of pleading guilty to a criminal offense?

The Fifth Circuit Court of Appeals recently took up this issue in the case of United States v. Kayode, and, in a 2-1 decision, ruled against the petitioner, a federal prisoner who brought the appeal without the help of an attorney.  The majority concluded that while the petitioner might have, in fact, received ineffective assistance of counsel — the petitioner told the court among other things that his attorneys failed to tell him he would be subject to deportation once he pleaded guilty to the charges brought against him by the Government —  he did not show that his attorneys’ bad lawyering harmed him in any way.  The fact that the petitioner resided in the country for 30-plus years, while relevant to whether the petitioner would have opted for a chance to fight his criminal charges at trial rather than succumb to a plea — his victory at trial would have presumably saved him from deportation — was, by itself, not enough to show he had been harmed by his lawyers’ shoddy work.  Instead, the majority focused on what it believed was the strong case the Government had against the petitioner and the petitioner’s failure to rebut any of this with evidence of his own.

If this result seems unjust to you, you are not alone.  Judge Dennis dissented from the majority decision, accusing the majority of short-circuiting the petitioner’s case.  For one, Judge Dennis wondered, how could the petitioner have given the majority what it wanted when he was housed under lock-and-key for the duration of the appeal and prepared the entire appeal on his own without the help of an attorney?  It is also puzzling, although Judge Dennis doesn’t make mention of this in his dissent, that the petitioner won’t be given a do-over, which is really what these kinds of postconviction cases are all about, when he has already demonstrated to the satisfaction of the entire court the grossly incompetent lawyering he received up until he pleaded guilty.

The opinion in United States v. Rasheed Kayode, No. 12-20513 (5th Cir. decided Dec. 23, 2014), can be found here.

UPDATE (2/24/2015): I have since learned that the petitioner in this case, Rasheed Kayode, had asked the appeals court to reconsider its decision.  He is, surprisingly, still representing himself, and he prepared and filed his own petition for rehearing, which relies, exclusively, on Judge Dennis’s dissent, for the reasons why he should be given a rehearing.

UPDATE (4/17/15): On March 2, 2015, the Fifth Circuit denied Mr. Kayode’s petition for a rehearing by the panel and by the en band court.

Seventh and Tenth Circuits Rule on Padilla Retroactivity

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?

Padilla Retroactivity in SCOTUS?

A few months ago, I wrote about the Virginia Supreme Court’s decision in Commonwealth v. Morris, limiting the procedural vehicles from which a defendant could launch a postconviction challenge under Padilla.  This decision generated some controversy after lower court judges refused to abide by the Morris court’s ruling and continued to entertain Padilla claims raised in the rather esoteric motions that were at issue in Morris.

Thanks to the SCOTUS blog, we have learned that Morris has appealed this decision to the U.S. Supreme Court.  The questions presented are as follows:

(1) Whether Padilla v. Kentucky applies retroactively to ineffective assistance of counsel claims raised on collateral review; and

(2) whether Virginia provides adequate postconviction remedies when petitioner and others similarly situated are precluded from vindicating violations of the right to effective assistance of counsel under Padilla.

Morris (the petitioner) is being represented by the law firm, Duane Morris.  The petition can be accessed here.  I will post Virginia’s response as it becomes available.

April Showers Bring May Flowers*

[*I have been informed by my ever helpful wife that we are in June; I will neither admit nor deny whether I knew this at the time I thought of this title but point out that the decisions at issue in this blog post were issued in May!]

The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way.  Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.

The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter.  It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)’s “new rule” exception, otherwise know as the death knell for Padilla retroactivity.  Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.

The Krboyan case can be downloaded here, Amer, here.

In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law.  The case is State v. Frensel Gaitan, which was previously covered in this blog here.  The question to be answered, according to the New Jersey Supreme Court website, is as follows:

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?

If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.

Issue of Padilla Retroactivity Heating Up In State Appellate Courts

The issue of Padilla retroactivity has been making its way through the State appellate courts.  I have already written about the ruling from the Minnesota Court of Appeals which held in Campos v. State that Padilla could be applied retroactively.  Campos, however, was not the first state appellate case to hold as such.  Just four days before Campos was decided, the Texas Court of Appeals, in State v. Golding, ruled in similar fashion: “Considering the language of the Padilla opinion, the Strickland analysis, and the prevailing professional norms occasioned by major changes in immigration law, we hold that Padilla — as an extension of Strickland, and not a new constitutional rule — applies to this case.” State v. Golding, slip op. at 24-25.  The opinion in Golding can be downloaded here.

I should also point out that the Florida Court of Appeals has chimed in on Padilla retroactivity, albeit unfavorably to potential Padilla postconviction petitioners (say that three times in a row!).  The case is Gabriel Hernandez v. State of Florida, Case No. 3D10-2462 (3d  Dist. Apr. 6, 2011).  The saving grace here, as ALIA has helpfully pointed out, is that the Hernandez decision had little analysis on Padilla retroactivity and ultimately certified the question to the Florida Supreme Court.  This will definitely be a case to watch.

Laguna: Padilla is a “New Rule,” Not Retroactive

The Northern District of Illinois still remains a hotbed of Padilla retroactivity decisionmaking.  This time, the court, as per Judge Virginia Kendall, came out against Padilla retroactivity.  So it’s currently 2-1 at the Northern District of Illinois, in favor of Padilla non-retroactivity, if you’re keeping score.

In United States v. Laguna, the petitioner, in an unusual procedural maneuver, collaterally challenged his order of removal under Padilla v. Kentucky rather than attacking the convictions that gave rise to the order itself.  (He most likely ran out of time on the latter approach; the convictions at issue arose in 2001 and the removal order was entered against him in 2002.)  The court noted at the outset that there was no dispute that the petitioner was not advised of immigration consequences prior to his pleading guilty to the 2001 offenses.  Nevertheless, the court went on to reject the petitioner’s Padilla-based challenge on several grounds, including the non-retroactivity of Padilla.  The Laguna court went through a relatively thorough analysis before finding that Padilla constituted a “new rule” under Teague and was therefore not retroactively applicable.  The highlights of the court’s retroactivity findings are as follows:

(1) Prior to Padilla, Seventh Circuit law did NOT mandate that an attorney advise a client of immigration consequences in order to render effective assistance under the Sixth Amendment.

(2) Pre-Padilla directives contained in bar rules and professional guidelines requiring advice on immigration consequences are not considered legal rules for purposes of the new rule/old rule retroactivity analysis.

(3) Even when Padilla was decided, the courts, including the U.S. Supreme Court, lacked unanimity as to whether the Sixth Amendment required advice as to immigration consequences, thus establishing that Padilla is a new rule.

(4) Padilla did not involve the application of an old rule to a new set of facts but instead required the resolution of the threshold issue of whether the Sixth Amendment applied at all in situations concerning immigration consequences.

It is worth noting that the court’s Padilla retroactivity analysis is still dicta since it it had already rejected the petitioner’s claim on procedural grounds before reaching the issue of Padilla retroactivity.  In fact, this retroactivity discussion could be considered double dicta since the court had already decided that one, the the petitioner’s collateral challenge was procedurally barred, and two, that the petitioner would not have been able to prove Strickland prejudice pursuant to Padilla.  [The correctness of the court’s Strickland prejudice analysis is questionable: contrary to the court’s ruling, the issue of Strickland prejudice in the plea context is not whether the defendant would not have been convicted at trial had the defendant received effective assistance of counsel but instead whether he would have proceeded to trial rather than pleading guilty based on the attorney misconduct at issue.  See Hill v. Lockhart, 474 U.S. 52, 59 (1985).  It’s a fine point and probably one that would not matter in most cases of ineffective assistance, but is still worth mentioning, especially since the issue for most immigrant defendants facing imminent deportation is not actually contesting guilt in a full-blown trial but securing a favorable plea deal that would avoid adverse immigration consequences – a fact emphasized by the Padilla majority, Padilla, 130 S. Ct. at 1486.]   A final note: the petitioner in this case had to shoulder what were some pretty unsympathetic facts (for example, he impeded the government’s efforts to remove him from the country after agreeing initially to voluntary departure), which, in all likelihood, contributed to the court’s decision against him.

The decision in United States v. Laguna can be downloaded here.