In 2010, the Supreme Court of the United States held in Padilla v. Kentucky, that a criminal defense attorney’s failure to advise a non-citizen client of the immigration consequences of a criminal conviction amounts to ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. The change in law effected by Padilla was recognized by the Washington State Supreme Court in State v. Sandoval, in 2011.
Padilla and Sandoval opened up a new avenue for post-conviction relief for non-citizen defendants who were not advised of the immigration consequences of their criminal convictions by their defense attorneys. At Black Law Offices, PLLC, we have handled a large number of Padilla claims, obtaining effective post-conviction relief for many of our clients, and preventing removal from the United States and other adverse immigration consequences.
Unfortunately, in 2012, the Supreme Court held in Chaidez v. United States that the decision in Padilla does not apply retroactively to cases that became final before Padilla was decided. Despite the decision in Chaidez, there is still hope for non-citizen defendants living in Washington State. In 2014, the Washington State Supreme Court granted review in two companion cases, In re Personal Restraint of Tsai and In re Personal Restraint of Jagana. The question before the state Supreme Court is whether Padilla applies retroactively notwithstanding the holding in Chaidez. Two state high courts, the Massachusetts Supreme Judicial Court and the Supreme Court of New Mexico, have already refused to follow the Supreme Court’s decision in Chaidez, and it is very possible that the Washington State Supreme Court will do the same.
Even if the Washington State Supreme Court ultimately decides to follow the Supreme Court’s decision in Chaidez, there will still be avenues for relief available to non-citizens in Washington who were either misadvised of the immigration consequences of their criminal convictions or not advised of the immigration consequences altogether based on state statutory and decisional law.
The attorneys at Black Law Offices, PLLC have experience litigating immigration-related post-conviction claims and are familiar with all the post-conviction options available to non-citizens faced with removal as a result of a criminal conviction, including sentence reduction, amendment of charges, vacatur, and gubernatorial pardons. Call us today for a consultation.