However, the Supreme Court’s recent decision in Chaidez v. United States is an uncomfortable reminder that this harshness extends to immigrants who may not have actually committed crimes, or whose crimes were so minor that even U.S. laws would not ordinarily deem them deportable.
Here’s the background on this situation: Because of wrong advice from criminal defense lawyers who didn’t fully understand the immigration laws (which, in these lawyers’ defense, are insanely tough to understand), many immigrants have pled guilty to, or otherwise failed to fully defend themselves against conviction for a crime — not realizing that the conviction’s presence on their record would make them deportable.
For instance, a criminal lawyer might reasonably tell an immigrant defendant, “Look, we got a great offer from the prosecutor — you plead guilty to a misdemeanor, and you’ll avoid jail time and a trial.” What the criminal lawyer may not know is that even some misdemeanors are considered “aggravated felonies” or “crimes of moral turpitude” under U.S. immigration law — either of which can make even a green card holder deportable from the United States. (See “Crimes That Will Make an Immigrant Deportable” for details.) Yet, relying on the lawyer’s advice, the immigrant might agree to plead guilty, rather than pushing for a trial that might perhaps result on a “not guilty” verdict.
The Supreme Court made some progress toward resolving this problem in a case called Padilla v. Kentucky. There, the Court held that criminal defense attorneys must inform noncitizen clients of the risks of deportation arising from guilty pleas — and if they didn’t, those convictions could later be challenged. That raised hopes that not only immigrants currently fighting deportation or a criminal conviction, but those whose criminal convictions had already become final could go back and have the case overturned.
Those hopes were dashed by the Chaidez case. The Padilla rule, according to the Court, does not apply retroactively. An immigrant with a final conviction for a crime — whether it’s final because all appeals are over or because the immigrant did not file an appeal within the time period allotted — must live with the consequences of that conviction. For more on the immigration consequences of criminal acts, see Nolo’s articles on “Crimes and U.S. Immigration.”