By Joseph Ax
NEW YORK, Feb 20 (Reuters) - A landmark U.S. Supreme Court
ruling requiring lawyers to tell immigrant clients they can be
deported if they plead guilty to certain crimes does not apply
retroactively, the high court said on Wednesday, invalidating
New York court decisions that had held to the contrary.
Despite the Supreme Court's decision, however, New York's
highest court could still find that it applies retroactively
under state law, rather than federal law.
The Supreme Court ruled in Padilla v. Kentucky in March 2010
that immigrants whose lawyers did not advise them of the
consequences of pleading guilty could claim ineffective counsel,
but the court did not address whether it should apply
In Wednesday's Supreme Court decision in Chaidez v. U.S.,
however, the court ruled 7-2 that Padilla did not apply
retroactively to cases that were already finalized, a defeat for
thousands of immigrants who might have been able to challenge
their guilty pleas.
New York courts had wrestled with whether Padilla should
apply retroactively before Wednesday's ruling.
In October, the Appellate Division, First Department, ruled
in People v. Baret that Padilla should apply to cases dating
back to at least 1996, when changes to immigration law greatly
increased the chances of deportation for immigrants convicted of
crimes. The case involved a Bronx man, Roman Baret, who faced
deportation after pleading guilty in 1996 to selling drugs.
Last year, the Appellate Division, Third Department, applied
Padilla to a 2008 case, though it did not explicitly hold that
Padilla should apply retroactively in all cases. The Appellate
Term, Second Department, has held that Padilla should apply to
cases prior to 2010.
Both the Appellate Division, First Department, and the
Appellate Term, Second Department, rulings found that Padilla
did not establish a new rule but merely applied an old rule to
new circumstances. Wednesday's Supreme Court decision held that
the Padilla ruling constituted a new rule and therefore should
not be applied to cases prior to 2010.
NEW RULE, OLD RULE
That means New York rulings that employed the new rule-old
rule reasoning, as in the Baret case, are no longer valid,
according to Labe Richman, who represents Baret.
However, Richman said, the Court of Appeals could still
weigh in on the issue using state law if it decides to take up
the Baret case on appeal, as the Bronx district attorney's
office has asked. Under a Supreme Court case, Danforth v.
Minnesota, states are permitted to extend new federal rules
retroactively under their own laws, even if the Supreme Court
has ruled otherwise.
"This is a setback, but we're still in the game," Richman
The Baret case would be the first time the state's high
court addresses whether Padilla can apply retroactively.
If the Court of Appeals hears the case, Richman said he
would urge it to consider several factors, including whether
ensuring that individuals receive effective counsel outweighs
the administrative burden that applying Padilla retroactively
would place on law enforcement.
Joseph Ferdenzi, the appeals bureau chief at the Bronx
district attorney's office, said prosecutors would argue that
the Supreme Court's ruling should be followed in New York.
"If Chaidez had come out the opposite way, then we wouldn't
be able to prevail on Baret," he said.
Ward Oliver, an immigration attorney with the Legal Aid
Society, said it was impossible to know how many cases in New
York could be affected but that it's not at all uncommon.
"I see many cases where if the person had gotten advice, the
immigration consequences would have been avoidable," he said.
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