National Immigrant Justice Center
208 S. LaSalle St., Suite 1818, Chicago, IL 60604
CHAIDEZ V. UNITED STATES
In Supreme Court Case Chaidez v. United States, NIJC Argues that Immigrants’ Right to Effective Assistance of Counsel Existed Pre-Padilla
When a noncitizen is charged with a criminal offense, it can have far-reaching consequences for them and their families. Minor offenses, even those involving no jail time, can subject a noncitizen to deportation, regardless of whether they are lawfully present in the United States. In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court formalized a rule, already a standard practice, that attorneys must notify their clients of the immigration consequences of a guilty plea. The criminal defense attorney for the petitioner, Roselva Chaidez, had done no such thing, and she pleaded guilty to an aggravated felony, subjecting her to mandatory removal.
Several organizations currently provide support and guidance for criminal defense attorneys in this regard. NIJC has a free manual available on its website that addresses the immigration consequences of criminal dispositions for noncitizens. Additionally, NIJC is available to provide criminal defense attorneys with consultations for their noncitizen clients through the Defenders Initiative. Other notable groups that provide similar assistance on the intersection between criminal and immigration law are the Defending Immigrants Partnership, the National Immigration Project of the National Lawyers Guild, and the Immigrant Defense Project.
The Story of Roselva Chaidez:
Ms. Chaidez is a 55-year old woman who entered the United States in the 1970s and became a lawful permanent resident in 1977. She lives in Chicago, as do her three U.S.-citizen children and two U.S.-citizen grandchildren. In the early 2000s, she played a minor role in a scheme involving insurance fraud. Ms. Chaidez claimed to have been a passenger in a car involved in a collision. The insurance company discovered the deception, and charges were filed. The entire scheme collected approximately $26,000; Ms. Chaidez personally received approximately $1,200. She took responsibility for her role in the scheme, pleaded guilty and was sentenced to four years probation.
In 2007, Ms. Chaidez applied to become a U.S. citizen and disclosed her fraud conviction as part of the application process. What she did not know when she pleaded guilty years earlier was that because more than $10,000 was involved in the total fraud, the crime to which she pleaded guilty was considered an "aggravated felony,” despite her own minor role in the scheme. An individual convicted of an aggravated felony is deportable from the United States and is almost entirely barred from any relief. If deported, Ms. Chaidez would be permanently ineligible to return legally to the United States. In 2009, immigration officials proceeded to place Ms. Chaidez in removal (deportation) proceedings.
Ms. Chaidez's legal case:
In early 2010, Ms. Chaidez asked Federal District Court Judge Joan Gottschall to vacate her conviction, arguing that her criminal defense attorney had a duty to tell her that pleading guilty would result in automatic deportation. While her petition was pending, the Supreme Court decided Padilla, which confirmed that Ms. Chaidez’s attorney was obliged to advise her of the immigration consequences of her conviction. In light of this opinion, Judge Gottschall found that Padilla was simply an application of the traditional rule that attorneys must provide their clients with all of the repercussions. Judge Gottschall found that Ms. Chaidez’s attorney’s failure to do so was prejudicial because Ms. Chaidez would not have agreed to the plea had she been properly advised of the immigration consequences.
The Government appealed to the U.S. Court of Appeals for the Seventh Circuit, challenging only the retroactivity of Padilla. By a 2-1 vote, the Seventh Circuit disagreed with the lower court’s decision and reversed. Writing for the Court, Judge Flaum found that Padilla was not merely the application of a longstanding rule that attorneys must competently represent their clients, but was a "new rule" because it required advice about immigration consequences. On that basis, the Seventh Circuit held that Padilla did not apply retroactively, and therefore did not permit Ms. Chaidez’s conviction to be vacated due to her lawyer's failure to advise. Ms. Chaidez asked the court to rehear the case, and over four dissenting votes, the court declined to hear the case en banc.
In December 2011, Ms. Chaidez filed a Petition for a Writ of Certiorari with the Supreme Court of the United States. Ms. Chaidez asks the court to find Padilla retroactive, and to vacate her conviction. Ms. Chaidez is represented by Jeffrey Fisher of the Stanford Law School Supreme Court Clinic; Gerardo Gutierrez of the Law Offices of Gerardo Gutierrez; NIJC's Chuck Roth and Claudia Valenzuela; Thomas Goldstein and Kevin Russell of Goldstein & Russell, P.C.; and Valerie Marsh, Kathleen Sanderson, and Angela Vigil of Baker & McKenzie LLP.
The Supreme Court granted certiorari in the case on April 30, 2012. A link to the Supreme Court's online docket can be found here. Five "friend of the court" briefs have been filed with the Supreme Court in support of Ms. Chaidez's arguments on the merits. Links to those briefs, as well as the decisions of Judge Gottschall and the Seventh Circuit, are below. The Solicitor General's brief was filed on September 14, 2012. Ms. Chaidez's reply brief was filed on October 15, 2012. The case was argued before the Supreme Court on November 1, 2012. On February 20, 2013. the Court decided the case, and affirmed the Seventh Circuit's decision. Read the decision here.
Merits Stage Briefing