Deportation and Criminal Law

Posted By Joey Gilbert Law || 2-Nov-2012

A battle is occurring between attorneys and their clients regarding all of the possible outcome that can come out of a case. Deportation is a scary idea to many people in the United States and in any criminal conviction, deportation is often looked at as a consequence to ones bad choices. In 2010 the Supreme Court ruled that criminal defense lawyers must warn their clients of deportation if a guilty plea is given.

This ruling as predicted by Justice Samuel A. Alito Jr. has many grey areas. The ruling "will lead to much confusion and needless litigation." Alito pointed out in a concurrence. A new issue raised on Thursday that sparked a debate as to whether the ruling applies to those thousands of people whose guilty convictions were final before the ruling was issued.

A woman from Mexico, now residing in Chicago Roselva Chaidez, has been a legal permanent resident of the United States since 1977. Chaidez was being accused of falsely claiming to have been a passenger in a car that was involved in an accident, resulting in a ruling of insurance fraud. Her guilty plea resulted in a sentence of four years of probation, and with no notification that the plea given made her eligible for deportation.

Ms. Chaidez is now trying to take her chances with the 2010 court ruling of Padilla v. Kentucky which stated attorneys have an obligation to notify their clients of the chances of deportation after a guilty plea. The question could only be answered as to whether the Padilla ruling was considered a new legal principle or one that applies to existing claims as well. As for the concept of new rules only counting from their announcement, was a decision made in 1989 by Teague v. Lane.

The guiding force of Ms. Chaidez' case is the opinions that follow the ethical values of telling ones client the consequences and what may happen to them after their pleas. In a concurrence, Justice Alito, who was joined by Chief Justice John G. Roberts Jr. stated that lawyers should not say anything false. Alito went on to say the majority's approach to this particular case was a "dramatic departure from precedent," which does not look good for Ms. Chaidez.

On thursday, Justice Scalia notified Jeffrey L. Fisher, a lawyer for Ms. Chaidez, "that the mere fact that there was a dissent in the case that adopted the rule does not necessarily make it a new rule. But you, on the other hand, would agree, would you not, that those who dissented from that case would regard it as a new rule?" Mr. Fisher replied with stating this is a "tricky question," and stated that Justice Scalia may reconsider his earlier position.

Justice Stephen G. Breyer combats stating "I would have though it was common sense that a lawyer should tell the client the terrible things that are going to happen to him if he pleads guilty."

The case of Chaidez v. United States was set to be heard on Tuesday, but with the affects of Hurricane Sandy, it has been rescheduled.

Categories: Criminal Defense
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