What a let down.  The judicial floor is a mess of split hairs.

Yes, I’m talking about yesterday’s long-awaited decision of the Supreme Court in Chaidez v. United States, No. 11-820 (Feb. 20, 2013).

We’ve blogged about what I still believe to be the landmark decision of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). We’ve talked about how this decision was profoundly limited here in Virginia by the Virginia Supreme Court’s decision in Commonwealth v. Chan and Commonwealth v. Morris.

The issue in Chaidez was whether Padilla is retroactive.  That is, what about all the people who got convicted without being warned about immigration consequences before that became ineffective assistance of counsel? (In other words, the Supreme Court said that defense attorneys have a duty to advise their non-citizen clients about immigration consequences – but that question is whether that duty has always existed, or whether it’s a “new rule” and therefore only applies to convictions after the date of the Padilla decision.)

It wouldn’t be a stretch to say that the Supreme Court knocked out most of teeth of Padilla with the Chaidez decision yesterday.  It held that Padilla announced a “new rule” of criminal procedure, and therefore it only applies to convictions that occurred after the decision came down (in March 2010), but not before.

The “new rule” test originated in an older Supreme Court case, Teague v. Lane, 489 US 288 (1989). On its face, the test makes sense: if a new decision applies an existing law to a new set of circumstances, then that law has always been the law and it will apply backwards and forwards, i.e., not just after the new decision, but before it as well.  But if the new decision creates new law, then it is not retroactive and applies forward only.

The issue is whether Padilla can be considered a new rule or not.  In a 7-2 decision, the Supreme Court said yes, it’s a new rule.  To do so, they had to split a lot of hairs.  They recognized that the test for what’s considered ineffective assistance of counsel is not new (Strickland v. Washington). But, they reasoned, the fact that they even had to decide whether the Strickland test applied was a brand new rule, fresh from the judicial oven.

That’s kind of like saying these pancakes aren’t the same as those pancakes because for these pancakes, we had to determine whether we had to use flour or not.

The “new rule” the majority says they create was applying the Sixth Amendment to civil (collateral) proceedings.  It may be true that Padilla may have been one of the first times it was expressly extended to removal proceedings – but for the Supreme Court to ignore over half a century of its own jurisprudence – all the way from Fong Haw Tan to St. Cyr – and hide behind the fact that no case had “dictated” a new rule – is disingenuous.  These lines of cases all stand for the proposition that deportation is not merely a collateral civil matter.  And in St. Cyr the Court clearly states that competent defense counsel would inform their client about the deportation consequences.  Yet the Court says no, this is the first time we’ve clearly stated the Sixth Amendment applies.  Under this rationale, the Court need not have relied on the half-century of de facto constitutional protections extended into removal proceedings.  Because hey, it’s a brand-new rule.

It’s like applying for a job, starting work, getting your first paycheck, but then being told you’re not an employee because your offer letter hasn’t been signed.

A common-sense approach would dictate that the decision should be retroactive.  The majority’s decision leaves at least a 20 year constitutional hole.  Because since the Immigration Act of 1990, and then IIRAIRA in 1996, the immigration consequences of criminal activity became constitutionally significant.  The fact that the Supreme Court didn’t recognize the constitutional problems until 2010 does not mean they did not exist.

The dissent correctly notes that Padilla is a new application of a well-settled rule to the immigration context.  Saying that there was new law involved in deciding whether to apply the test is, frankly, hair-splitting.  If that were the case, it is hard to envision any decision not being a “new rule.” 

This decision exalts form over function.  The fundamental spirit of Teague v. Lane could still have been respected and followed by the dissent’s position. It is only because the Court found that no prior decision “dictated” the new rule (even though the half-century of jurisprudence all but did exactly that) 
In 50 years, I would hope that the criminal and immigration bars become so close that defendants can expect to receive competent immigration advice.  Certainly most courts have made procedural changes to comply with Padilla – though there are a lots of times, still, where defense counsel falls short.  But the people that needed Padilla the most are the ones who got victimized (for lack of a better term) by swiftly changing immigration laws that played tic-tac-toe with the collective learning curve of the criminal defense bar until the Supreme Court finally stepped in to stop it.  The folks who pleaded guilty after IIRAIRA to crime they didn’t know had just become aggravated felonies.  It’s disappointing that the Supreme Court can extend constitutional protections, and note all the while of the dire need to do so, and then hold that the very people who need it most cannot benefit from it.

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