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Is Padilla retroactive? Supreme Court remains divided

On Behalf of | Nov 30, 2012 | Firm News, Immigration Detention |

Earlier this month the Supreme Court of the United States heard arguments about whether Padilla v. Kentucky, a watershed case for immigrants, can be applied retroactively. Though the court is not expected to make a decision on the matter until June, this case could have far-reaching effects for immigrants facing deportation or who have already been deported.

Padilla was an important 2010 case that found that immigrants had the right to be told what the consequences are of pleading guilty to a crime. Before that, if a lawyer had not warned an immigrant client that he or she could be deported if he or she pled guilty, the lawyer may not have been prudent, but he or she would not have violated anyone’s rights. Now, however, the court has made it explicit that one of an immigrant’s rights is to know that a guilty plea exposes him or her to the risk of deportation.

The problem was, however, that the Supreme Court did not indicate whether these rights were retroactive. What about the immigrants who had pled guilty prior to Padilla? What about the individuals who were in deportation proceedings at the time Padilla was decided? What about the people who had pled guilty years before hand but were only facing deportation when they tried to naturalize? These are the questions that the Supreme Court hopes to answer through its most recent case.

In August 2011, a federal court of appeals held that because the Padilla case had created a new constitutional right that it could not be applied retroactively because of a 1989 Supreme Court ruling. Some of the justices on the Supreme Court, however, believe that Padilla only reminded lawyers of their duty to inform immigrant suspects of their rights, which would mean that the Padilla decision can be applied retroactively.

Moving forward, this decision could have a huge effect on Lancaster’s immigrant population and for those people who were deported from Lancaster because their attorneys failed to warn them of the danger of pleading guilty.

Source: Reuters, “Supreme Court weighs expanded warnings on deportation risk,” Jonathon Stempel, Nov. 1, 2012

Visit our Lancaster deportation defense page to learn more about our law firm’s work on behalf of individuals threatened with deportation.


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