Legal Aid Immigration Unit Supervisor Raises Concerns About U.S. Supreme Court's Recent Immigration Ruling

Last week, the U.S. Supreme Court held that its landmark Padilla ruling does not apply retroactively under federal law. In 2010, the High Court ruled in Padilla v. Kentucky that criminal lawyers are required to advise immigrant clients that they could be deported if they plead guilty to certain crimes. In New York, the State's highest court has not ruled yet on whether the Padilla principle applies retroactively under State law. In response to the U.S. Supreme Court's retroactively ruling, Ward Oliver, a Supervising Attorney in The Legal Aid Society's Immigration Law Unit, told Reuters that, in reviewing cases referred to Legal Aid, Society attorneys "see many cases where if the person had gotten advice, the immigration consequences would have been avoidable."

N.Y. cases in limbo after Supreme Court immigration ruling
February 20, 2013
By Joseph Ax
NEW YORK, Feb 20 (Reuters)

A landmark U.S. Supreme Court ruling requiring lawyers to tell immigrant clients they can be deported if they plead guilty to certain crimes does not apply retroactively, the high court said on Wednesday, invalidating New York court decisions that had held to the contrary.

Despite the Supreme Court's decision, however, New York's highest court could still find that it applies retroactively under state law, rather than federal law.

The Supreme Court ruled in Padilla v. Kentucky in March 2010 that immigrants whose lawyers did not advise them of the consequences of pleading guilty could claim ineffective counsel, but the court did not address whether it should apply retroactively.

In Wednesday's Supreme Court decision in Chaidez v. U.S., however, the court ruled 7-2 that Padilla did not apply retroactively to cases that were already finalized, a defeat for thousands of immigrants who might have been able to challenge their guilty pleas.

New York courts had wrestled with whether Padilla should apply retroactively before Wednesday's ruling.

In October, the Appellate Division, First Department, ruled in People v. Baret that Padilla should apply to cases dating back to at least 1996, when changes to immigration law greatly increased the chances of deportation for immigrants convicted of crimes. The case involved a Bronx man, Roman Baret, who faced deportation after pleading guilty in 1996 to selling drugs. Last year, the Appellate Division, Third Department, applied Padilla to a 2008 case, though it did not explicitly hold that Padilla should apply retroactively in all cases. The Appellate Term, Second Department, has held that Padilla should apply to cases prior to 2010.

Both the Appellate Division, First Department, and the Appellate Term, Second Department, rulings found that Padilla did not establish a new rule but merely applied an old rule to new circumstances. Wednesday's Supreme Court decision held that the Padilla ruling constituted a new rule and therefore should not be applied to cases prior to 2010.


That means New York rulings that employed the new rule-old rule reasoning, as in the Baret case, are no longer valid, according to Labe Richman, who represents Baret.

However, Richman said, the Court of Appeals could still weigh in on the issue using state law if it decides to take up the Baret case on appeal, as the Bronx district attorney's office has asked. Under a Supreme Court case, Danforth v. Minnesota, states are permitted to extend new federal rules retroactively under their own laws, even if the Supreme Court has ruled otherwise. "This is a setback, but we're still in the game," Richman said.

The Baret case would be the first time the state's high court addresses whether Padilla can apply retroactively.

If the Court of Appeals hears the case, Richman said he would urge it to consider several factors, including whether ensuring that individuals receive effective counsel outweighs the administrative burden that applying Padilla retroactively would place on law enforcement.

Joseph Ferdenzi, the appeals bureau chief at the Bronx district attorney's office, said prosecutors would argue that the Supreme Court's ruling should be followed in New York. "If Chaidez had come out the opposite way, then we wouldn't be able to prevail on Baret," he said.

Ward Oliver, an immigration attorney with the Legal Aid Society, said it was impossible to know how many cases in New York could be affected but that it's not at all uncommon.

"I see many cases where if the person had gotten advice, the immigration consequences would have been avoidable," he said.