Padilla v. Kentucky is NOT retroactive

• posted by Tai Stevenson

Recently, in Chaidez v. United States, our Supreme Court has ruled that Padilla may NOT be applied retroactively. In 2010, the Supreme Court in Padilla found that an ineffective assistance of counsel claim under the Sixth Amendment could be based on failure to inform a criminal defendant of the immigration consequences of a criminal conviction prior to entering into a plea agreement. This landmark case allowed many immigrants to overturn plea agreements they agreed to yet were unaware of the immigration consequences in agreeing to the plea terms. For a couple of years, many states were divided on whether Padilla could be applied retroactively (for plea agreements prior to 2010). Regretably, the Supreme Court concluded that Padilla should not be applied retroactively.

Essentially, the Chaidez decision prohibits immigrants to overturn plea agreements made without knowing any immigration consequences made PRIOR to March 2010. This is very unfortunate for several reasons. First, many individuals accept plea agreements to save money and to avoid the hassle of the judicial system. Often times, individuals can spend tens of thousands of dollars to fight charges brought against them. Unfortunately, immigrants are often unaware of the immigration consequences in accepting plea agreements. These immigration consequences can often to lead to deportation and permanent bars from entering the United States.

In any event, Padilla still applies to cases where individuals made plea agreements without knowing immigration consequences ON OR AFTER March 2010. Please contact an immigration lawyer prior to accepting any plea agreement in a criminal case.