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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Friday, November 02, 2012

Subject to Deportation

NEW YORK TIMES (Editorial)
November 1, 2012

Two years ago, the Supreme Court held that a lawyer has a constitutional duty to advise a client who is not an American citizen that pleading guilty to a criminal offense could lead to being deported. If the lawyer fails to do that, the client has a claim for ineffective counsel under the Sixth Amendment.

On Thursday, the justices heard argument in a case about whether that rule should apply retroactively to defendants whose court proceedings occurred before the 2010 Supreme Court ruling. Fairness, precedent and common sense dictate that it should.

The question arises in the case of Roselva Chaidez, a Mexican citizen who has been a permanent resident in the United States since 1977. She pleaded guilty in 2003 to mail fraud after receiving $1,200 for falsely claiming that she was a passenger in a car involved in an accident, and she received four years of probation under her plea agreement.

"A lawyer'’s obligation to advise a client that a conviction could lead to being deported was well established for at least 15 years," the court said in the 2010 ruling, "so her lawyer clearly had that duty when counseling her." The justices at that time strongly implied that their decision applied retroactively, by noting that it would not open the “floodgates” to challenges of previous convictions.

For the relatively small share of defendants affected, the consequences of deportation are enormous. Had she been given an informed choice, Ms. Chaidez said she would have accepted a harsher punishment rather than risk deportation and separation from her three children and two grandchildren, who are American citizens.

This case has come before the court because it has held that a new procedural rule cannot be applied retroactively to challenge a criminal conviction. But, in 2010, the court did not announce a new rule because its holding imposed no new obligation.

Instead, the court applied to a new set of facts an old rule --— the well-established principle that defendants have a constitutional right to effective counsel. In fact, as far back as 2001, the court recognized that “preserving the client’'s right to remain in the United States may be more important to the client than any potential jail sentence.”

The court should state clearly that its 2010 ruling applies retroactively. And it should vacate Ms. Chaidez'’s conviction because her lawyer failed to tell her that pleading guilty could subject her to deportation --— and that failure denied her effective counsel.

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