Maybe. Argument on the issue will be heard next term, which begins on the first Monday of October.
The genesis of the dispute arose in 2010, when the Supreme Court ruled in Padilla vs. Kentucky that non-citizens who pleaded guilty to felonies, but weren't advised by their lawyers they automatically would be deported, were unconstitutionally deprived of their Sixth and 14th Amendment rights to effective counsel.
The vote was 7-2.
Now the Supreme Court has agreed to review whether the Padilla ruling should be made retroactive. In other words, should it be applied to any non-resident who pleaded guilty to a felony without effective counsel from 1996, when the deportation law was passed, to 2010, when the decision was handed down.
How big a universe would be affected is up for speculation.
In urging that the new case, Chaidez vs. USA, be reviewed to resolve conflicting rulings in the lower courts, the Obama administration told the Supreme Court: "Many non-citizens are now attempting to overturn their long-final convictions based on this court's decision in Padilla. These collateral proceedings threaten society's interest in the finality of criminal convictions."
The issue, the administration said, "also will have a significant impact on the federal government's efforts to enforce this nation's immigration laws against those who have become removable as a result of pre-Padilla criminal convictions."
A friend-of-the-court brief filed by the National Association of Criminal Defense Lawyers, the National Immigration Project of the National Lawyers Guild, the Immigrant Legal Resource Center and the Immigrant Defense project, refers to "countless" defendants.
"The lack of a remedy [for pre-Padilla ineffective counsel] imposes intolerably harsh consequences on countless non-citizens facing detention and deportation as a result of wrongfully procured plea-based convictions," the brief said. "For these non-citizens and their families -- which often include both citizen and non-citizen children -- the grave misfortune of a pre-Padilla final conviction in a federal judicial circuit that does not recognize a remedy for such Padilla violations, is deeply unjust and damaging: It can separate long-time residents from their loved ones and communities; tear apart families; impair children's health and education; and cause severe economic hardship. Moreover, the conflict creates a regrettable disuniformity in the enforcement of federal immigration law."
Another friend-of-the-court brief filed in support of the defendant in the new case points out that the rights involved have a deep history.
The brief by the Constitutional Accountability Center, based in Washington, cites the "landmark English Treason Act of 1696, which first affirmed a right of counsel, explicitly spoke of [c]ounsel learned in the law."
It also cites James Madison, a founding father and one of principal drafters of the Constitution who argued against the Alien and Sedition Act.
"If the banishment of an alien ... be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the names can be applied," Madison wrote.
Even if the number of non-U.S. citizens who would be affected by applying Padilla retroactively is just a small fraction of those aliens being held in detention for deportation, the number itself could be large.
The Esperanza Immigrant Rights Project, a program of Catholic Charities, says the "number of non-citizens who are arrested, detained and placed into removal proceedings is rising every year. In 2010 approximately 400,000 non-citizens were detained by Immigration and Customs Enforcement."
The Dallas Post also reported last week the number of deportations "has steadily increased over the past few years, rising from 291,060 in fiscal year 2007 to 396,906 in fiscal year 2011, according to ICE."
The number being detained pending deportation "has also skyrocketed. At the end of fiscal year 2002 the average daily population of detainees was 19,922. That rose to 33,330 in fiscal year 2011."
The Post said there were 32,191 immigrants detained nationwide as of last Feb. 20, at an average cost of $122 per day. The newspaper said that equates to $3.9 million each day, or $1.43 billion for this year.
Though most illegal immigrants who have received a final removal order are deported within a month, the American Civil Liberties Union says "there are hundreds of cases, particularly those involving immigrants seeking political asylum and those convicted of criminal charges, that can take a year or more," the Post reported.
The new case accepted by the Supreme Court for next term involves Roselva Chaidez, who was born in Mexico but has lived in the United States since the 1970s. She has been a lawful permanent U.S. resident since 1977 and lives in Chicago with her three U.S.-citizen children and two U.S.-citizen grandchildren, her petition to the high court says.
"Several years ago, Chaidez became involved in an insurance scheme," the petition says. "As the government explained, she was 'not aware of the specifics of the scheme,' but others persuaded her to falsely claim to have been a passenger in a car involved in a collision. ... Chaidez received $1,200 for her minor role. ... [and] the insurance company paid a total of $26,000 to settle the claims that Chaidez and others made."
That was enough to push the fraud into "aggravated felony" territory under a 1996 federal law. Prosecutors charged Chaidez in 2003 with two counts of mail fraud for two separate mailings related to collecting her settlement. Her attorney recommended she accept a plea bargain offered by the government.
Her petition said Chaidez was not told by her attorney if she pleaded guilty she would be deported, as required by law. She pleaded guilty, was sentenced to probation and ordered to pay $22,000 restitution.
When she later applied for U.S. citizenship, drawing the attention of officials, the government began deportation proceedings. After the lower courts ruled against her, she asked the Supreme Court for review.
Chaidez' case is one of a dozen or so accepted by the Supreme Court for argument next term. Given the 7-2 vote in Padilla, her chances of success at the high court level may be quite good.
"In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised," Scalia wrote in the 2010 dissent. "The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.
"The Sixth Amendment guarantees the accused a lawyer for his defense against a 'criminal prosecutio[n]' -- not for sound advice about the collateral consequences of conviction."
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