Overturning Old Convictions After Chaidez

21 Feb

Yesterday, the Supreme Court ruled that Padilla does not apply retroactively to convictions that were final at the time of the Padilla decision. In other words, there is no basis for arguing that a pre-2010 criminal conviction should be overturned on the grounds that the alien was not advised of the immigration consequences of a guilty plea by his defense attorney as required by Padilla. This will naturally make it much harder to get out of old convictions that make someone deportable.

However, it is not impossible to overturn old convictions. Remember that, long before the Padilla decision was handed down, immigrants were getting convictions overturned in order to stop deportations or make them eligible for immigration benefits. Those options are still in place.

For example, I had a client in removal proceedings because she had two convictions for crimes involving moral turpitude in Ohio. These were theft by check convictions from the early 1990s. Ohio had a law at the time that judges were required to advise any non-citizen that a guilty plea could have immigration consequences. Moreover, if there was no record of this advisal being given in the court transcript, it is presumed that the advisal was not given and the conviction in invalid. We found the transcripts and were able to show that there was no record of the client being so advised. Accordingly, the convictions were overturned and the removal proceedings terminated.

The lesson is that old convictions can still be overturned for all sorts of reasons. There may be statutory or case law in a particular state that required immigration warnings even before Padilla. Additionally, convictions can be void for reasons having nothing to do with immigration. Or, a sentence can be modified if the immigration consequences are severe.

Chaidez is a bad result for immigrants because it takes away one argument that could be used to overturn old convictions. But it would be a mistake to think this is the only argument, or that there is no hope in overturning prior convictions that are creating immigration problems today.

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