Monday, September 13, 2010

Padilla v. Kentucky Reference Guide

Office of Immigration Litigation - Appellate Section
Office of Immigration Litigation Issues Reference Guide to Immigration

Consequences of Crimes in Response to Supreme Court Decision in Padilla v. Kentucky.

In view of the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Office of Immigration Litigation (“OIL”) has prepared a comprehensive overview of the provisions of the Immigration and Nationality Act that are relevant to criminal aliens. The overview is intended to assist interested parties in understanding the potential immigration consequences of a plea to criminal charges. Padilla held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. The Court concluded that defense counsel’s failure to so advise, or defense counsel’s misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which may be a basis for withdrawing a guilty plea and vacating a conviction.

The Court’s holding in Padilla requires defense counsel to have a basic understanding of immigration law – an area in which they “may not be well versed” – in order to effectively advise their clients. Padilla, 130 S. Ct. at 1483. The decision is also of obvious importance, however, to federal and state prosecutors and judges, among other interested parties. This guide – to which many OIL attorneys have contributed – presents a brief, cogent, and clear introduction that identifies and summarizes the relevant statutes.

OIL includes a six-page appendix on classification that includes categorical analysis, modified categorical analysis, circumstance-specific analysis (Nijhawan), but omits any reference to Silva-Trevino.
Errors in OIL’s 2010 post-Padilla Reference Guide: “Immigration Consequences of Criminal Convictions: Padilla v. Kentucky”


1. On page 11 of the reference guide, under "Crimes Involving Moral Turpitude" the petty offense exception found in 8 U.S.C. § 1182(a)(2)(A)(ii)(II) is misstated. The exception applies to offenses for which the maximum possible term of imprisonment does not exceed one year. OIL misstates this as "for which the maximum possible term of imprisonment was less than one year." This is significant because under California law, for example, a misdemeanor where the actual sentence didn't exceed 6 months may qualify under the exception because the possible term of imprisonment for a California Misdemeanor does not exceed one year. OIL’s error, if relied upon, would mistakenly signal to parties that a California misdemeanor conviction cannot be crafted in such a way as to fall within the petty offense exception and thereby avoid or mitigate certain immigration consequences.

2. Also on page 11 of the guide, under "Controlled Substance Offenses," OIL erroneously states that 8 U.S.C. § 1182(a)(2)(A)(i)(II) contains a marijuana exception. There is no marijuana exception under the criminal grounds of inadmissibility. Such an exception exists instead under the criminal grounds of deportability found in 8 U.S.C. § 1227(a)(2)(B)(i).

Additional Points for Consideration:

3. On page 9 of the reference guide, OIL provides a possible list of offenses that could be deemed to constitute Crimes Involving Moral Turpitude (CIMTs). Parties should be particularly careful in relying on such a list since the CIMT definition is unclear. One Circuit Court has referred to the question of what constitutes a CIMT as “a nebulous question.”  The agency and federal court interpretations of what constitutes a CIMT are constantly changing. As an example, OIL includes "Driving under the influence without a license" in its list of offenses that could be CIMTs. In the 9th Circuit, driving under the influence with knowledge that the driver is prohibited from driving with a suspended or otherwise restricted license is a CIMT.  The elements of a crime involving moral turpitude must be found in the statute of conviction. Two statutes cannot be stacked in order to create a new offense that would be considered a CIMT. For example a CA simple DUI, Vehicle Code § 23152 cannot be found in combination with a Driving w/o License, Vehicle Code § 14601 to constitute a CIMT since separately, neither of the offenses requires an individual to drive drunk with knowledge of a suspended or revoked license.  Available at:

4.  OIL uses California's burglary statute, Cal. Penal Code § 459, as an example of a statute that is "missing" the element of an unlawful or unprivileged entry required under Taylor's generic definition of burglary. In the 9th Circuit, when a statute is missing an element of the generic offense altogether, it categorically cannot fall within that generic definition since a jury would never be required to find all of the elements of the generic crime.  OIL offers a useful analysis of the Categorical and Modified Categorical Approaches outlined by the U.S. Supreme Court in Taylor (1990) and Shepard (2005).

5.  OIL completely ignores the Attorney General's highly criticized decision in Matter of Silva-Trevino that suggests that the immigration court can go beyond the record of conviction in determining when a conviction constitutes a CIMT. Silva-Trevino has been explicitly rejected by the 3rd and 8th Circuits. OIL was wise not to give weight to the AG’s clear departure from years of established Supreme Court, Circuit Court, and BIA precedent in their reference guide.
  • Ocegueda-Nunez v. Holder, 594 F.3d. 1124, 1127 (9th Cir. 2010).
  • Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)(en banc).
  • Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc).
  • Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).
  • Jean-Louis v. Attorney General, 582 F.3d 462 (3rd Cir. 2009) and 
  • Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. 2010).

Prepared by Raha Jorjani, Supervising Attorney
Immigration Law Clinic
UC Davis School of Law
October 2010

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Wednesday, September 8, 2010

Section 245(i) not available for Spouse of 245(i) Eligible Applicant: Matter of LEGASPI, 25 I&N Dec. 328 (BIA 2010)

Matter of Michael Raymund Aguirre LEGASPI, Respondent
File A097 368 288 - Los Angeles, California
Decided September 1, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Click here for the decision.

An alien is not independently “grandfathered” for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2006), simply by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the result of having been a derivative beneficiary of a visa petition.

On January 14, 2008, an Immigration Judge denied the respondent’s application for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), but granted him voluntary departure. The respondent, a native and citizen of the Philippines, has appealed from that decision.  The appeal will be dismissed.

This case presents the question whether the spouse of an alien who is grandfathered for purposes of section 245(i) of the Act can independently adjust his status under section 245(i). We hold that he cannot.

Section 245(i) of the Act permits adjustment of status for certain aliens who are (1) ineligible under section 245(a) for entering without inspection or (2) disqualified under section 245(c) of the Act. As originally enacted,section 245(i) was scheduled to sunset on October 1, 1997.1 However, Congress added a grandfathering provision that allows some aliens to continue to benefit from section 245(i).  Section 245(i)(1) of the Act.  Under the regulations relating to this provision, the term “grandfathered aliens”  1 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No.105–119, § 111(b), 111 Stat. 2440, 2458.  encompasses beneficiaries (and their derivative beneficiaries, including family members specified in section 203(d) of the Act, 8 U.S.C. § 1153(d) (2006))of visa petitions or labor certifications that were (1) filed on or before April 30, 2001; (2) properly filed; and (3) approvable when filed. Id.; 8 C.F.R. § 1245.10(a) (2010); see also Matter of Rajah, 25 I&N Dec. 127, 133-35 (2009) (discussing the mechanics of section 245(i) of the Act).

The respondent married Ms. Blanco, who is a lawful permanent resident,in 2003. As a child, Ms. Blanco qualified as a derivative beneficiary of a 1987 visa petition filed by her paternal grandfather on her father’s behalf.Ms. Blanco did not adjust her status through her grandfather’s petition.Instead, her status was adjusted via an employment-based immigrant visa petition that was filed in April 2002.  Even though her adjustment was not based on the 1987 petition, she remains a grandfathered alien for purposes of accessing section 245(i) to adjust status.2

The respondent is not eligible to adjust his status under section 245(a) because he is an alien who failed to maintain lawful status after entry.  Section 245(c)(2) of the Act. Thus, he can only apply for adjustment of status under section 245(i), but he cannot independently qualify to adjust under that section because he is not a grandfathered alien. See 8 C.F.R. §§ 1245.10(a)(1)(i), (b).However, he claims that he is eligible to adjust his status under section 245(i) as a derivative beneficiary of Ms. Blanco, because she is a grandfathered alien.

The Department of Homeland Security (“DHS”) counters that the respondent cannot adjust his status under section 245(i) of the Act because Ms. Blanco is not the principal beneficiary of the 1987 visa petition.  The principal beneficiary of that petition was her father.  The DHS argues that the statute and the regulations permit a spouse or child accompanying or following to join a principal beneficiary who is adjusting status to be treated as a grandfathered alien, but not someone in the respondent’s position. See 8 C.F.R. § 1245.10(a)(1)(i).

Both the statute and the regulations extend eligibility for section 245(i)adjustment to an alien who is the beneficiary (including a spouse or child of the alien beneficiary, if eligible to receive a visa under section 203(d) of theAct) of a visa petition or labor certification filed on or before April 30,2001, in certain circumstances.  Section 245(i)(1) of the Act; 8 C.F.R.§§ 1245.10(a)(1)(i), (b). We agree with the DHS that the respondent cannot independently adjust his status under section 245(i) because he does not have 2 Both parties represent that Ms. Blanco adjusted her status under section 245(a) of the Act. However, because she was a derivative beneficiary of the 1987 visa petition, she remains eligible for adjustment of status under section 245(i) until she adjusts once under that section. See Memorandum from William R. Yates, Assoc. Dir. for Operations, to USCIS officials (Mar. 9, 2005), at §§ 3D(1), 3E(2) (clarifying eligibility requirements for adjustment of status under section 245(i)), 2005 WL 628644. a qualifying relationship to the principal beneficiary of the 1987 petition.See Landin-Molina v. Holder, 580 F.3d 913, 918 (9th Cir. 2009) (explaining that a derivative spouse is only eligible for adjustment of status under section245(i) if he or she is “accompanying or following to join” the principal alien).The language of section 245(i) makes clear that it applies only to the beneficiary of the visa petition and to that principal alien’s spouse or child(and only if those relatives are eligible to receive a visa under section 203(d)).Section 245(i)(1)(B) of the Act. The respondent was not the beneficiary of a visa petition; nor was he ever the spouse or child of the principal alien beneficiary, Ms. Blanco’s father.  Therefore, the respondent cannot be grandfathered as a derivative.

Moreover, had Ms. Blanco been married at the time her grandfather’s petition was filed, she would not have qualified as a derivative beneficiary.If married, she would not have met the definition of a “child” for purposes of section 203(d) of the Act. See section 101(b)(1) of the Act, 8 U.S.C.§ 1101(b)(1) (2006) (excluding married individuals from the definition of a child). In other words, Ms. Blanco’s derivative beneficiary status depended on her being a “child” who was accompanying or following to join her father. The respondent simply cannot claim to independently qualify for section 245(i) adjustment of status on the basis of a relationship that would have precluded Ms. Blanco from qualifying in her own right.

For these reasons, we conclude that the Immigration Judge properly denied the respondent’s application for adjustment of status.  Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER:  Pursuant to the Immigration Judge’s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (“DHS”).  See section 240B(b)of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2006); see also 8 C.F.R. §§ 1240.26(c), (f) (2010). In the event the respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge’s order.

NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act, 8 U.S.C. §§ 1229b, 1255, 1258, and 1259 (2006). See section 240B(d) of the Act.

WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above,the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended.  If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply.  See Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927, 79,937-38(Dec. 18, 2008) (codified at 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1)).

WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect.  However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States.  The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time tha the or she remains in the United States while the petition for review is pending.See 73 Fed. Reg. at 76,938 (codified at 8 C.F.R. § 1240.26(i)).

Matter of Mohamed RAJAH, Respondent
25 I&N Dec. 127 (BIA 2009)
File A095 956 512 - New York, New York
Decided November 12, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations.

(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.

(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.

Matter of Ajmal Hussain Shah HASHMI, Respondent
24 I&N Dec. 785 (BIA 2009)
File A095 827 197 - Newark, New Jersey
Decided April 22, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.

(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.

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Wednesday, September 1, 2010

Padilla applied retroactively to conviction which became final before March 31, 2010

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ROSELVA CHAIDEZ, Defendant/Petitioner.  No. 03 CR 636-6  UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION  2010 U.S. Dist. LEXIS 81860  August 11, 2010, Decided August 11, 2010, Filed

PRIOR HISTORY: United States v. Chaidez, 2010 U.S. Department. Dist. LEXIS 69561 (N.D. Ill., July 8, 2010) 



Defendant/Petitioner Roselva Chaidez, a lawful permanent resident of the United States, filed a petition for writ of error coram nobis complaining that neither this Latricia Tatum, Homewood, IL. court nor her attorney informed her of the immigration  consequences of pleading guilty to federal charges of mail fraud. (Doc. 178.) Chaidez pled guilty on December 3, 2003 (Doc. 50), and the court sentenced her to four  years of probation (Doc. 65). On October 11, 2009, Chaidez filed her petition as a separate civil case. Chief Judge James Holderman dismissed the case and instructed Chaidez to refile her petition as part of the original criminal case before this court. (See Case No. 09 C 6372, Doc. 3.) Chaidez filed her petition as a motion on January 25, 2010. (Doc. 171.) She filed a corrected petition on March 23, 2010. (Doc. 178.) Just one week later, the Supreme Court issued its decision in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), holding that a habeas petitioner could bring a claim for ineffective assistance of counsel where he would not have pled guilty but for the failure of his attorney to advise him of the immigration consequences of the plea. 

In a previous opinion, this court explained that Chaidez would need to provide additional factual detail in order for the court to assess her claim under Padilla. United States v. Chaidez, No. 03 CR 636-6, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2 (N.D. Ill. July 8, 2010). Chaidez has now submitted an affidavit filling in some of the gaps. (See Doc. 188.) If it appears from the affidavit that Chaidez can make out her claim, the government has requested a hearing to establish what Chaidez knew about the possibility of deportation at the time her guilty plea. 

A. Retroactivity
The government in its supplemental response argued that Padilla could not be applied retroactively in Chaidez's collateral attack on her guilty plea. The court concluded that Chaidez did not seek retroactive application of Padilla. Rather, the court stated, it need only apply the well-established rule in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2. Upon further consideration, the court is convinced that the issue is not so straightforward, and more thorough analysis is required. Thus, as an initial matter, the court reconsiders sua sponte its ruling on retroactivity. Only a few courts have yet weighed in on the question of Padilla's retroactive application. Some courts have found that the decision may be applied to convictions which became final before March 31, 2010, the date the Padilla decision was announced, and so is applicable retroactively. See United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010); People v. Bennett, 903 N.Y.S.2d 696, 700 (N.Y. Crim. Ct. 2010). Other courts have reached the opposite conclusion. Gacko v. United States, No. 09-CV-4938 (ARR), 2010  U.S. Dist. LEXIS 50617, 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010); People v. Kabre, No. 2002NY029321, 2010 N.Y. Misc. LEXIS 3275, 2010 WL 2872930, at *10 (N.Y. Crim. Ct. July 22, 2010).

The Supreme Court's landmark decision in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), limited the ability of courts to hear constitutional challenges to convictions on collateral review. 1 Teague clarified that a criminal defendant seeking to collaterally attack a conviction may not rely on a new constitutional rule of criminal procedure identified only after the date that the conviction became final. Id. at 310.A conviction becomes final after the judgment of conviction is rendered, the availability of direct appeal is exhausted, and the time for filing a petition for certiorari has elapsed.  Id. at 295. 

Neither the Supreme Court nor the Seventh Circuit has determined whether the retroactivity rule of Teague applies to a coram nobis petition. What precedent exists regarding coram nobis has generally cited to post-conviction cases. See Larry W. Yackle, Postconviction Remedies § 7:27 (Thomson Reuters 2010). Other circuits have applied Teague in coram nobis cases. See United States v. Mandanici, 205 F.3d 519, 527 (2d Cir. 2000); United States v. Swindall, 107 F.3d 831, 834 (11th Cir. 1997). And the Seventh Circuit has stated that, "A writ of error  coram nobis affords the same general relief as a  writ of habeas corpus." Howard v. United States,  962 F.2d 651, 653 (7th Cir. 1992). The court will  follow the Second and Eleventh Circuits and  apply Teague in this case. Although Teague was a plurality opinion, a  majority of the court quickly adopted the rule  announced in that case. See Penry v. Lynaugh,  492 U.S. 302, 313, 109 S. Ct. 2934, 106 L. Ed. 2d  256 (1989), overruled on other grounds by Atkins  v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).  The Teague analysis generally turns on whether a particular decision announced a new rule or merely applied an old rule in a new context. 3 When the Court overturns its own prior precedent, clearly a new rule is established. Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). "[I]t is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases." Id.; accord Teague, 489 U.S. at 301. The Teague Court elaborated:  Generally . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent  existing at the time the defendant's conviction became final.
Id. (emphasis in original).

There are two exceptions to the Teague rule. First, "a new rule should be applied retroactively if it places 'certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). Padilla clearly does not fit within this exception because that decision dealt with an attorney's duty to inform the client about the consequences of a guilty plea; it did not contain any holding about the power of the court to impose a judgment of conviction based on a particular crime. Second, courts may retroactively apply "watershed rules of criminal procedure." Id. The Supreme Court has made clear that this is a narrow exception for rules that are "central to an accurate determination of innocence or guilty."  Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005) (noting that the Supreme Court has never applied the second Teague exception); see also United States v. Mandanici, 205 F.3d 519, 528-29 (2d Cir. 2000) (collecting Supreme Court cases rejecting application of second Teague  [exception).

The "dictated" language from Teague suggests a broad interpretation of what constitutes a new rule. Whenever uncertainty might exist about how a certain holding applies to a new context, then it could be said that the holding does not "dictate" the particular application. But the Supreme Court has not found that every novel application of an old precedent results in the announcement of a new rule. See, e.g., Stringer v. Black, 503 U.S. 222, 237, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992) (holding that cases invalidating use of vague aggravating factors in capital sentencing applied to Mississippi's capital sentencing law despite the fact that Mississippi used a different method of weighing aggravating and mitigating factors); Penry, 492 U.S. at 318-19 (holding that as-applied challenge to Texas death penalty statute did not seek application of new rule, despite earlier Supreme Court opinion rejecting facial challenge to the same statute). In Penry and Stringer, the Court determined that the results were "dictated" by law that existed at the time of the petitioner's conviction. Yet, neither of these decisions was unanimous. In each, Supreme Court Justices disagreed about the logical reach of the Court's earlier precedents.

In its habeas corpus jurisprudence, the Court has maintained a distinction between a court's statement of the law and its application of the law to a new set of facts. See Williams v. Taylor, 529 U.S. 362, 410-12, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Under Teague, a novel statement of law will be considered a new rule while a new application of the rule will not. Butler v. McKellar, 494 U.S. 407, 414-15, 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990); see also Thomas v. Gilmore, 144 F.3d 513, 516 (7th Cir. 1998) (holding that petitioner seeking per se rule that counsel must subpoena all institutional records in capital cases would be barred by Teague, "but that leaves open the possibility that his lawyer failed to come up to minimum professional standards by not subpoenaing the records in the particular circumstances of this case") (emphasis in original). This distinction is admittedly a murky one. The discovery of a new rule will depend entirely upon the level of generality at which the court defines the new holding. See Wright v. West, 505 U.S. 277, 311, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992)
(Souter, J., concurring).

The holding in Padilla is an extension of the rule in Strickland. Strickland held that a defendant could have his conviction reversed if he could show that his counsel's representation "fell below an objective standard of reasonableness," and that that deficiency prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687-88, 694. 4 The question for this court is whether Padilla announced a new rule, as defined by Teague, or whether the Court merely applied Strickland to new facts. The Court in Padilla was asked to address only the first half of the Strickland analysis. The Court left open the question of whether petitioner had been prejudiced by his counsel's ineffective
assistance. Padilla, 130 S. Ct. 1483-84.

Padilla could be described as establishing a per se rule that counsel must inform a client of immigration consequences before an informed guilty plea may be entered. Alternatively, the case can be read as a straightforward application of Strickland: the petitioner's attorney "fell below an objective standard of reasonableness," because, as a factual matter, the professional standards at the time of the client's plea required counsel to inform of potential immigration consequences.

Both of these potential readings have some appeal. The government points out that the language of the opinion suggests the Justices recognized the novelty of its holding. Padilla, 130 S. Ct. at 1486 ("[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation."); id. at 1488 (Alito, J., concurring) ("[T]his Court has never held that a criminal defense attorney's Sixth Amendment duties extend to providing advice about [collateral consequences of a conviction].") As one court recently observed in declaring that Padilla would not apply retroactively, the Supreme Court's decision effectively changed the law in nine circuits and the majority of states. Kabre, 2010 N.Y. Misc. LEXIS 3275, 2010 WL 2872930, at *4-5. Every circuit to have addressed the issue, including the Seventh Circuit, had concluded that deportation is a collateral consequence of a conviction and counsel is not ineffective for failing to warn the client about the potential immigration consequences of conviction. 2010 N.Y. Misc. LEXIS 3275, [WL] at (citing United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Santelises, 476 F.2d 787 (2d Cir. 1973); United States v. Del Rosario, 902 F.2d 55, 284  U.S. App. D.C. 90 (D.C. Cir. 1990); United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); United States v. Banda, 1 F.3d 354 (5th Cir. 1993); United States v. George, 869 F.2d 333 (7th Cir. 1989); United States v. Fry, 322 F.3d 1198 (9th Cir. 2000); Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985)). These decisions are strong support for the proposition that Padilla announced a new rule. See Butler, 494 U.S. at 415.  

Before Padilla there was a split among the circuits on the question of whether counsel is ineffective in affirmatively providing incorrect information about immigration consequences. See Padilla, 130 S. Ct. at 1484. The Court held that an attorney can be ineffective both for misleading her client and for failing to provide any advice. Id. Chaidez does not aver that she was misled, but rather that her attorney provided no information about immigration consequences.

Nevertheless, as the Supreme Court stated in Williams, "[e]ven though we have characterized the new rule inquiry as whether 'reasonable jurists' could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is 'objective,' and the mere existence of conflicting authority does not necessarily mean a rule is new." 529 U.S. at 410 (quoting Wright, 505 U.S. at 304). Padilla did not overturn any prior decision of the Supreme Court. Padilla, 130 S. Ct. at 1481 ("We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland."). Justice Stevens's majority opinion in Padilla relied primarily on citations to Strickland itself as well as secondary sources discussing prevailing professional norms at the time of Padilla's plea. Id. at 1482-83. And the Court noted its longstanding reliance on "[p]revailing norms of practice as reflected in American Bar Association standards and the like" to determine the extent of professional obligations in the Strickland analysis. Id. at 1482. The Court also noted that the extent of the advice counsel is required to give will be entirely fact-dependent. Id. at 1483. The law in Padilla's case was straightforward. But often the immigration consequences will be less clear, and counsel is not required to know every intricacy of immigration law. Id.

Further, the Court has noted that "the Strickland test provides concurring) (citations omitted); cf. Bousley v. United States, 523 U.S. 614, 619-20, 118 S. Ct. 1604, 140  L. Ed. 2d 828 (1998) (rejecting application of Teague to claim that guilty plea was not knowing and intelligent because, even though intervening Supreme Court authority provided the reason for questioning the validity of the plea, "[t]here is surely nothing new about this principle").  Justice Kennedy's analysis applies equally to Strickland claims. In Osagiede v. United States, 543 F.3d 399, 408 n.4 (7th Cir. 2008), the Seventh Circuit rejected the argument that Teague prevented a habeas petitioner from arguing that his counsel had been ineffective for failing to seek a remedy under Article 36 of the Vienna Convention. The court, quoting Justice Kennedy's concurrence in Wright, held that, although the petitioner cited no previous cases where Strickland claims had succeeded under this theory, an application of Strickland in this novel context did not create a new rule. Id. The court relied on the fact that "a reasonable Illinois lawyer would have known" that Article 36 created individual rights. Id. at 409-10.

Thus, the only question for this court is whether this is "the infrequent [Strickland] case that yields a result so novel that it forges a new rule." Id. at 408 n.4. It is a close question, but the court is convinced that Padilla did not announce a new rule for two reasons. First, the petitioner in Padilla brought a collateral challenge to his conviction. Thus, if Chaidez's claim is barred by Teague, Padilla's claim should have been barred as well. Prior to the decision in Teague, the Supreme Court would regularly announce new rules but not address the issue of retroactivity until subsequent cases. Teague, 489 U.S. at 302-03. This procedure led to "unequal treatment of those who were similarly situated." Id. at 303. The Teague Court declared that, going forward, the issue of retroactivity should be decided as a threshold question on collateral review, before addressing any constitutional claim. Id. at 305. Reaching out to decide constitutional questions on collateral review, even though the rule proposed by a petitioner could not be applied retroactively, would threaten "the integrity of judicial review" by "'assert[ing] that our constitutional function is not one of adjudication but in effect of legislation.'" Id. at 304 (quoting Mackey, 401 U.S. at 679). Although the government may waive  the issue of retroactivity, a court can raise it sua sponte. Thomas, 144 F.3d at 516. In Teague, the government did not argue retroactivity, but the Court felt compelled to decide the case on those grounds. In Padilla, despite three separate opinions, no member of the Court even mentioned Teague or any retroactivity issue. In fact, as two courts have noted, the majority opinion stated that "it had 'given serious consideration' to the argument that its ruling would open the 'floodgates' to new litigation challenging prior guilty pleas." Hubenig, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625, at *7 (quoting Padilla, 130 S. Ct. at 1484-85); accord Bennett, 903 N.Y.S.2d at 700. 

The Court stated:  It seems unlikely that our decision today will have significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea.  Padilla, 130 S. Ct. at 1485 (emphasis added). "If the Court intended Padilla to be a new rule which would apply only prospectively, the entire 'floodgates' discussion would have been unnecessary." Hubenig, 2010  U.S. Dist. LEXIS 80179, 2010 WL 2650625, at 7.

Jose Padilla pled guilty to three drug-related charges; final judgment was entered on October 4, 2002. Padilla filed for post-conviction relief in state court on August 18, 2004. Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008). The Supreme Court of Kentucky eventually ruled that Padilla was not entitled to relief, id. at 485, and Padilla appealed that decision to the U.S. Supreme Court.
Second, application of Padilla in cases like this one continues to promote the finality of judgments, which is the purpose behind the rule in Teague, see Gilmore v. Taylor, 508 U.S. 333, 351, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (O'Connor, J., concurring), while balancing the need to provide meaningful review of constitutional errors resulting in uninformed guilty pleas. A post-conviction court applying Strickland is bound to consider whether counsel's assistance was effective with reference to professional standards as they existed at the time of the conviction. Conner v. McBride, 375 F.3d 643, 656 (7th Cir. 2004). Critical to the Court's decision in Padilla was the fact that professional legal standards had long required criminal attorneys to inform their clients of immigration consequences. 130 S. Ct. at 1482-83. 

The Supreme Court, itself, recognized as early as 2001 that immigration consequences of guilty pleas would be critically important to defendants and that "competent defense counsel, following the advice of numerous practice guides" would be expected to advise clients of the opportunity for discretionary relief from rules permitting deportation. INS v. St. Cyr, 533 U.S. 289, 323, 121 S. Ct. 2271, 150 L. Ed. 2d 347 & n.50 (2001). In Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), a habeas case, the Court held that counsel had been ineffective in failing to examine certain mitigating evidence. The majority rejected the contention of dissenters that the opinion created a "rigid, per se" rule that could not be considered on collateral attack. Id. at  389. That decision, like the one in Padilla, relied heavily on ABA professional standards in concluding that counsel's representation had fallen below an objective standard at the time of conviction. Id. at 387.

The Supreme Court has employed a "functional view of what constitutes a new rule." Saffle, 494 U.S. at 488. To make out a Strickland claim, a criminal defendant will generally be required to bring in evidence that has not been made part of the record. United States v. Fish, 34 F.3d 488, 491 n.1 (7th Cir. 1994). 

On direct review, an appellate court generally cannot consider this additional evidence. Id. Thus the court hearing the Strickland claim in a collateral attack on a federal conviction will serve a function similar to the appellate court, by being the first to reconsider the work done by the trial court. This function will be especially important in cases like this one. Chaidez pled guilty, allegedly relying on the ineffective advice of counsel. She received a sentence of four months probation and, rightly, saw no reason to seek a direct appeal. Only when the immigration consequences of her plea became clear years later, after the opportunity for appeal had long since past, did she seek to challenge the plea. Virtually all criminal defendants with Padilla claims are likely to have had little reason to appeal their own guilty pleas. If the Supreme Court had refused on retroactivity grounds to reach the constitutional claim in Padilla, no court would ever have been able to establish that counsel must advise about immigration consequences of a guilty plea. The likelihood of the issue arising on direct appeal would have been miniscule.

Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner's claim.

B. Chaidez's Affidavit
The court now turns to a review of the affidavit submitted by Chaidez. In its previous opinion, the court explained that coram nobis relief is available only where petitioner can show: 1) there was an error "of the most fundamental character," 2) there are "sound reasons for the failure to seek earlier relief," and 3) the petitioner "continues to suffer from [her] conviction even though [s]he is out of custody." Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2. As the court previously held, Chaidez can satisfy the first element of this test by showing that her defense attorney provided ineffective assistance. 2010 U.S. Dist. LEXIS 69561, [WL] at *2-3. Chaidez's affidavit states that her attorney "never informed me that as a non-U.S. Citizen, a lawful permanent resident was subject to removal or deportation from the United States for committing any aggravated felony without any form of relief available to me." (Aff. P 8.) Chaidez also states that had the attorney explained the immigration consequences, Chaidez would not have pled guilty. (Id. P 10.)

Next, the court held that Chaidez could establish the second element of the coram nobis standard by showing that she had a good reason for waiting until now to raise the issue. Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *4-5. The affidavit states that she "first became aware of my immigration troubles quite by accident in early 2009." (Aff. P 14.) Chaidez avers that she learned that she could be deported only after she attempted to apply for citizenship (id. PP 15-18), just a few months before she first sought relief from her conviction. 7  7 Chaidez's affidavit contains an apparent inconsistency. 

She states: 
Then on or about December 2009, I received a Notice to Appear before an immigration judge for removal proceedings. I immediately contacted my U.S. Probation Officer, Juan Tappia, who gave me the name of my current immigration lawyer, Gerardo Gutierrez.  (Aff. PP 18-19.) 

This suggests that Chaidez did not meet with her attorney until at least December; however, she first filed her petition through counsel in October 2009. Nevertheless, the affidavit also states that Chaidez first learned of the possibility of deportation in "early 2009," and the court relies on that factual averment in concluding that Chaidez may be able to satisfy the requirements of coram nobis.

Finally, the court held that Chaidez could establish the third element of the coram nobis standard because she pled guilty to a crime for which federal law permits the Attorney General to seek deportation. Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *4. And, in fact, Chaidez alleges that the government has initiated removal proceedings against her. (Aff. P 18.) Now that Chaidez has established a legally sufficient claim for relief, she is entitled to an evidentiary hearing. 8 See United States v. Bejacmar, 217 Fed. Appx. 919, 921 (11th Cir. 2007) (quoting Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002)) (where coram nobis petitioner "alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim"); United States v. Liska, 409 F. Supp. 1405, 1406 (E.D. Wis. 1976)
("Where . . . the [coram nobis] petitioner has alleged in a sworn affidavit facts which, if true, might well entitle him to some form of relief, it would be improper to deny him a hearing on his claim."). Chaidez should be prepared to present evidence on all elements of her claim, and the government will
[*23] be permitted to cross examine petitioner and present any evidence contradicting the facts as alleged by Chaidez. Chaidez faces a heavy burden, because counsel is presumed effective. Fish, 34 F.3d at 491. Chaidez must show that counsel's performance "fell below an objective standard of reasonableness," and "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. 8 

At a court appearance on August 11, 2010, the government sought permission to file a response to Chaidez's affidavit. The court ordered the response by August 23, 2010. (Doc. 192.) If the government points to any deficiencies with the affidavit that are not noted by the court, the court may reconsider this section of the opinion at that time.

For the reasons stated above, Chaidez is entitled to a hearing on her claim of ineffective assistance of counsel. /s/ JOAN B. GOTTSCHALL United States District Judge  DATED: August 11, 2010

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