By: Margarita Baldwin*
On November 1, 2012, the US Supreme Court heard the oral arguments in Roselva Chaidez v. United States, (USSC No. 11-820, cert granted 4/30/12) to determine whether the Padilla v. Kentucky, 130 S. Ct. 1473 (2010) should apply retroactively. Decided in 2010, Padilla established that a criminal defense attorney’s failure to advise client of the immigration consequences of a criminal conviction can be considered “ineffective assistance of counsel” and set the conviction aside. Padilla rules are unambiguous ; however, they do not apply retroactively.
The Padilla decision was a milestone for many immigrants who now had an avenue for post-conviction relief. In Chaidez, Roselva Chaidez pled guilty to a criminal charge, but her attorney failed to inform her that her charge will result in deportation. Chaidez was eligible for relief under Padilla, but Padilla cannot be applied retroactively due to another Supreme Court decision. In Teague v Lane, 489 U.S. 288 (1989), the Supreme Court held that the relief in federal habeas corpus proceeding challenging the validity of a state-court criminal decision cannot be based on new rules of constitutional criminal procedure. Teague defends the position that an invalid criminal judgment will not be overturned because of the society’s interests in finality and respect to the court’s opinion.
The fate of the rule established in Teague, is the real target of Chaidez’s litigation. Indeed, the Teague rule is unfair. It links the availability to relief to the time when the court discovers a constitutional rule, which causes similarly situated immigrants to be treated differently. Chaidez’s arguments are strong and the chances are high that the Supreme Court’s decision will be favorable for the petitioner. Chaidez reasons that since the federal post-conviction proceedings are procedurally similar to the state post-conviction proceedings, Teague’s comity concern should be dismissed. Further, according to Chaidez’s brief, another component of Teague – finality does not bar Chaidez’s claim either. Therefore, when the comity concern is taken away, Chaidez can retroactively contest the finality of the sentence with help of Padilla.
Therefore, the Supreme Court should limit the Teague rule, so it will not preclude immigrants from seeking protection under Padilla to obtain post-conviction relief. Eventually, this will allow to apply Padilla retroactively, to reverse criminal convictions, and avoid undeserved deportations.
 Criminal defense attorneys have to advise their non-citizen clients about the possible consequence of guilty plea, and they cannot remain silent on the fact that a deportation may occur. If this is not observed, the non-citizen attorney’s failure to advise can be regarded as the ineffective assistance of counsel and set aside the criminal conviction
 Chaidez learned that her criminal conviction can lead to deportation only in 2009 when she applied for US citizenship. She filed a coram nobis petition to restore her to a pre-conviction state (as she was erroneously convicted) six years after her guilty plea since her probation was completed and she could not file a habeas corpus petition because she was no longer “in custody.”
*Margarita Baldwin is a legal assistant at BOILA PC