Supreme Court of the United States

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1 dno IN THE Supreme Court of the United States ROSELVA CHAIDEZ, v. UNITED STATES OF AMERICA, Petitioner, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PETITIONER DEBORAH S. SMITH LAW OFFICE OF DEBORAH S. SMITH 7 West Sixth Avenue, Suite 4M Helena, Montana (406) deb@debsmithlaw.com REBECCA SHARPLESS IMMIGRATION CLINIC UNIVERSITY OF MIAMI SCHOOL OF LAW 1311 Miller Drive, E273 Coral Gables, Florida (305) rsharpless@law.miami.edu IRA J. KURZBAN Counsel of Record KURZBAN, KURZBAN, WEINGER, TETZELI & PRATT P.A S.W. 27th Avenue, 2nd Floor Miami, Florida (305) ira@kkwtlaw.com Attorneys for Amicus Curiae American Immigration Lawyers Association

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii INTERESTS OF AMICUS CURIAE...1 SUMMARY OF ARGUMENT...2 ARGUMENT...5 I. PROFESSIONAL NORMS REQUIRED CRIMINAL DEFENSE ATTORNEYS TO DISCUSS THE IMMIGRATION CONSEQUENCES OF PLEA AGREEMENTS WITH THEIR CLIENTS FOR MANY YEARS PRIOR TO PADILLA; THOSE CONVICTED BEFORE PADILLA WITHOUT EFFECTIVE ASSISTANCE OF COUNSEL SHOULD THEREFORE HAVE AN OPPORTUNITY TO REVISIT THE CONVICTIONS THAT RENDERED THEM DEPORTABLE A. THE IMMIGRATION CONSEQUENCES OF PLEA AGREEMENTS....6 B. DEFENDANTS WHOSE ATTORNEYS DID NOT ADHERE TO PROFESSIONAL NORMS HAVE BEEN DEPORTED OR ARE LIVING IN THE SHADOW OF DEPORTATION i

3 C. BECAUSE THERE IS NO STATUTE OF LIMITATIONS ON DEPORTABLE OFFENSES, PADILLA S RETROACTIVITY IS NECESSARY FOR NONCITIZENS CONVICTED OF LOW-LEVEL OFFENSES WITHOUT EFFECTIVE ASSISTANCE OF COUNSEL TO AVOID BEING SUBJECT TO DEPORTATION FOR THE REST OF THEIR LIVES D. IN CASES WHERE DEFENDANTS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AFFIRMING PADILLA S RETROACTIVITY WILL ALLOW DEFENDANTS TO MAKE INFORMED DECISIONS ABOUT THE CONSEQUENCES OF PLEADING GUILTY OR GOING TO TRIAL, AS THE CONSTITUTION REQUIRES...20 CONCLUSION...23 ii

4 CASES TABLE OF AUTHORITIES Boakye v. United States, No. 09 Civ. 8217, 2010 WL (S.D.N.Y. Apr. 22, 2010)...21 Bridges v. Wixon, 326 U.S. 135 (1945)...7 Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011)...20 Delgadillo v. Carmichael, 332 U.S. 388 (1947)...3, 6 Ferguson v. Att y Gen. of U.S., 216 F. App x 217 (3d Cir. 2007)...8 Gideon v. Wainwright, 372 U.S. 335 (1963)...6 Glasser v. United States, 315 U.S. 60 (1942)...6 Johnson v. Holder, 413 F. App x 435 (3d Cir. 2010), vacated in part as moot, 2011 U.S. App. LEXIS 2593 (3d Cir. Feb. 9, 2011)...8 Kokobani v. United States, Nos. 5:06 cr 207, 5:08 cv 177, 2010 WL (E.D.N.C. Jul. 30, 2010)...21 Luna v. United States, No. 10CV1659 JLS (POR), 2010 WL (S.D. Cal. Nov. 23, 2010)...20 McMann v. Richardson, 397 U.S. 759 (1970)...6 Missouri v. Frye, 132 S. Ct (2012)...4 Ng Fung Ho v. White, 259 U.S. 276 (1922)...6 Padilla v. Kentucky, 130 S. Ct (2010)... passim Song v. United States, Nos. CV DOC; CR DOC, 2011 WL (C.D. Cal. June 27, 2011)...21 Strickland v. Washington, 466 U.S. 668 (1984)...2, 6, 12, 20 United States v. Marroquin, No. M , 2011 WL (S.D. Tex. Feb. 4, 2011)...20 iii

5 Zapata-Banda v. United States, Nos. B:10 256, B:09 PO WL (S.D. Tex. Mar. 7, 2011)...20 STATUTES 8 U.S.C. 1101(a)(43)...3, 7 8 U.S.C. 1101(a)(43)(M)(i) U.S.C. 1101(a)(48)(A) U.S.C. 1153(c) U.S.C. 1182(a)(9)(A)(ii)...4, 7 8 U.S.C. 1226(c)...3, 7 8 U.S.C. 1227(a)(2)(A)(i)(I) U.S.C Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No , div. C, 321, 110 Stat OTHER AUTHORITIES ABA Standards for Criminal Justice, Pleas of Guilty, (2d ed & Supp. 1986)...9 Banished Veterans, Jonathan Baum et al., In the Child s Best Interest? The Consequences of Losing a Lawful Immigrant Parent to Deportation (2010)...15 Nina Bernstein, Officials Hid Truth of Immigrant Deaths in Jail, N. Y. Times (Jan. 9, 2010)...16 Brief for Amici Curiae Asian American Justice Center, Mexican American Legal Defense and Educational Fund et al. in Padilla v. Kentucky, No Catholic Legal Immigration Network, Inc., The Impact of Our Immigration Laws and Policies on U.S. Families (2000)...12, 17 iv

6 Maryellen Fullerton & Noah Kingstein, Strategies for Ameliorating the Immigration Consequences of Criminal Convictions: A Guide for Defense Attorneys, 23 Am. Crim. L. Rev. 425 (1986)...9 Ginnie Graham, Broken Arrow Immigrant s Case Calls Federal Laws into Question, Tulsa World (Nov. 20, 2011)...13, 14 Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy (2007)...8 Patrick J. McDonnell, Deportation Shatters Family, L.A. Times (Mar. 14, 1998)...8 Nina Shea, Obliterating Iraq s Christians, Wash. Post (May 14, 2010)...17 Shortfalls of the 1996 Immigration Reform Legislation: Hearing Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H.R. Comm. on the Judiciary, 110th Cong. 33 (2007) (prepared statement of Paul Virtue, former INS Commissioner)...8 v

7 INTERESTS OF AMICUS CURIAE The American Immigration Lawyers Association ( AILA ) is a voluntary bar association formed in 1946, and comprised of more than 11,000 lawyers and law professors who practice and teach in the field of immigration and nationality law. AILA seeks to advance the administration of law pertaining to immigration, nationality, and naturalization; to cultivate jurisprudence of the immigration laws; and to facilitate the administration of justice and elevate the standard of integrity, honor, and courtesy of those appearing in a representative capacity in immigration and naturalization matters. AILA has appeared as Amicus before this Court in numerous cases relating to the administration and interpretation of the Immigration and Nationality Act ( INA ), 8 U.S.C et seq., including recently in Vartelas v. Holder, No ; Judulang v. Holder, No ; and Kawashima v. Holder, No Amicus s members comprise the professional association of immigration lawyers. They are wellplaced to convey the practical import of this Court s affirming that the rule of Padilla v. Kentucky, 130 S. Ct (2010), has retroactive effect. In this brief, Amicus highlights some of the lives already changed 1 Pursuant to Rule 37.6 of the Rules of this Court, Amicus states that no counsel for a party authored this brief in whole or in part and that no person other than Amicus, its members, and their counsel made a monetary contribution to its preparation or submission. The parties letters consenting to the filing of this brief have been filed with the Clerk. 1

8 by Padilla, through a sample of cases characterized by equities including rehabilitation, military service, and deep familial and community ties to the United States. These individuals await a ruling by this Court that the Constitution s venerable guarantee of effective assistance of counsel applies without regard to the vagary of when a conviction became final. SUMMARY OF ARGUMENT Amicus s brief describes immigrants whose lives will be affected profoundly by the Court s resolution of this case. They are people for whom the stakes could not be higher, as their ability to remain with their families in the United States hinges on Padilla s retroactive effect. For a number of these immigrants, the United States is the only home they have or can remember. Criminal defense attorneys informed their clients about the immigration consequences of plea agreements for many years before Padilla. In light of prevailing professional norms to advise noncitizen criminal defendants about such consequences, Padilla held that the Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel test applies when attorneys fail to inform noncitizen defendants that their plea agreements would render them deportable. See Padilla, 130 S. Ct. at Abiding by these norms, attorneys were frequently able to secure plea agreements for their clients that did not result in deportation. Noncitizens who received effective assistance of counsel often avoided immigration detention, removal, and permanent separation from their U.S. citizen spouses and children. 2

9 But sometimes counsel fell short of his or her professional obligations, and failed to advise a noncitizen defendant about immigration consequences before the defendant entered a guilty plea. Such shortcomings have caused dire consequences including deportation, which the Court has recognized as the equivalent of banishment or exile. Id. at 1486 (citing Delgadillo v. Carmichael, 332 U.S. 388, 390 (1947)). Without criminal defense counsel being mindful of the immigration backdrop during plea negotiations for a noncitizen, some offenses result in near-automatic deportation, such as those labeled aggravated felonies under the INA. See 8 U.S.C. 1101(a)(43) (delineating a broad range of offenses in twenty-one separate clauses, ranging from murder to much less serious, nonviolent crimes). An outcome as extreme as deportation, envisioned by neither the prosecutor nor the criminal defense attorney and least of all by the noncitizen defendant could, and did, occur without the benefit of prosecutorial discretion and plea bargaining. These central features of criminal justice adjudication might have allowed the parties to reach a plea agreement satisfying the government s lawenforcement objectives while at the same time ameliorating adverse immigration consequences. Congress gradation of offenses in the INA, which calibrates their seriousness with corresponding immigration consequences, envisions that such prosecutorial discretion and plea bargaining would take place to avoid disproportionately severe immigration results in compelling cases. By establishing harsh consequences for noncitizens who commit aggravated felonies offenses for which especially 3

10 punitive measures are imposed, such as mandatory custody, id. 1226(c); manifold bars to relief, meaning that removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion, Padilla, 130 S. Ct. at 1480; and a permanent bar to returning to the United States, see 8 U.S.C. 1182(a)(9)(A)(ii) Congress intended for the criminal justice system to sift cases and refer only certain ones for the least forgiving immigration treatment. Where ineffective assistance of counsel led to a lack of awareness of the immigration dimension of a criminal conviction, there was no triage to determine the most serious offenses worthy of the harshest immigration consequences. In these defective proceedings, all actors in the criminal justice system the prosecutor, the criminal defense attorney, and the judge operated under a veil of ignorance that concealed immigration consequences, sometimes the most important part... of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Padilla, 130 S. Ct. at 1480; cf. Missouri v. Frye, 132 S. Ct. 1399, (2012) ( The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. ). The Court should acknowledge Padilla s retroactivity in order to ensure that criminal defense attorneys errors falling below the prevailing professional norms of representation do not lead to devastating repercussions for their 4

11 clients, in contravention of how Congress designed the immigration consequences of criminal convictions. The Department of Homeland Security (DHS) can initiate removal proceedings against a noncitizen due to a criminal conviction at any point after the individual pleads guilty. Deportation proceedings may start decades after a conviction. Some noncitizens have not yet discovered that old, lowlevel offenses preceding Padilla have rendered them deportable. This Court s confirmation that Padilla has retroactive effect would allow noncitizens prejudiced by ineffective assistance of counsel to make new, informed decisions about their plea agreements, as the Constitution requires. In jurisdictions where Padilla has been held to be retroactive and meritorious applicants have had their convictions vacated, noncitizens have negotiated new plea agreements with prosecutors that avoid deportation consequences while requiring the noncitizens to repay their debts to society in full. Without Padilla retroactivity, those exposed to ineffective assistance of counsel prior to March 31, 2010, will be at immediate risk of deportation despite being convicted in violation of the Constitution. This group includes parents and spouses of U.S. citizens, refugees and asylees, and military veterans who honorably served this country. ARGUMENT I. Professional norms required criminal defense attorneys to discuss the immigration consequences of plea agreements with their clients for many 5

12 years prior to Padilla; those convicted before Padilla without effective assistance of counsel should therefore have an opportunity to revisit the convictions that rendered them deportable. Every criminal defendant has long been entitled to the effective assistance of counsel. See, e.g., McMann v. Richardson, 397 U.S. 759, 771 (1970); Gideon v. Wainwright, 372 U.S. 335, (1963); Glasser v. United States, 315 U.S. 60, (1942). The Constitution forbids a criminal defendant regardless of citizenship to be left to the mercies of incompetent counsel. Padilla, 130 S. Ct. at 1486 (citing McMann, 397 U.S. at 771). The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688. A defendant is entitled to relief if an attorney s deficient performance prejudiced the defendant. Id. at 688, 694. A. The immigration consequences of plea agreements. This Court has emphasized for at least 90 years that deportation is an especially harsh punishment, the equivalent of banishment or exile. Padilla, 130 S. Ct. at 1486 (citing Delgadillo, 332 U.S. at 390). Deportation obviously deprives [a person] of liberty.... It may result also in loss of both property and life, or of all that makes life worth living. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). [D]eporation is an integral part indeed, sometimes the most important part of the penalty 6

13 that may be imposed on noncitizen defendants who plead guilty to specified crimes. Padilla, 130 S. Ct. at [A] deported alien may lose his family, his friends, and his livelihood forever. Return to his native land may result in poverty, persecution, and even death. Bridges v. Wixon, 326 U.S. 135, 164 (1945). As Padilla recounted, noncitizens have been rendered deportable for designated criminal convictions since 1917, when INA 19 attached deportation consequences to crimes involving moral turpitude. Judicial recommendations against deportation (JRADs) were available to sentencing judges, who could bind the Executive branch not to deport a particular noncitizen defendant. In 1952, Congress curtailed JRADs, and in 1990 eliminated them completely. Subsequently, in 1996, Congress sharply limited the Attorney General s discretionary power to stop a deportation that is based on criminal grounds. See Padilla, 130 S. Ct. at The current INA includes twenty-one categories of criminal convictions that lead to nearmandatory deportation because they are aggravated felonies. See 8 U.S.C. 1101(a)(43). In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act vastly expanded the scope of aggravated felonies and made the definition retroactive. See Pub. L. No , div. C, 321, 110 Stat Even broader categories of offenses require mandatory immigration custody while it is determined whether or not an alleged noncitizen is deportable or has available relief. Id. 1226(c). After removal for an aggravated felony, a noncitizen is permanently barred from returning to the United States. Id. 1182(a)(9)(A)(ii). Noncitizens 7

14 are frequently detained for months or years pending deportation proceedings. See generally Brief for Amici Curiae Asian American Justice Center, Mexican American Legal Defense and Educational Fund et al. in Padilla v. Kentucky, No The particular offense to which a noncitizen pleads is therefore crucial. Both serious and some minor crimes can result in deportation proceedings, with varying possibilities for relief. Low-level crimes with immigration consequences have included: shoplifting $14.99 worth of baby clothes, a $10 sale of marijuana, urinating at a construction site, jumping subway turnstiles, and mooning. 2 Because the consequences of a criminal conviction can be so severe for a noncitizen, prevailing professional norms for criminal defense attorneys have required them to inform clients of guilty pleas deportation consequences. Padilla concluded, supported by extensive citation, that these norms had existed for at least 15 years before the Court s March 2010 decision. Padilla, 130 S. Ct. 2 See Shortfalls of the 1996 Immigration Reform Legislation: Hearing Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H.R. Comm. on the Judiciary, 110th Cong. 33 (2007) (prepared statement of Paul Virtue, former INS Commissioner); Patrick J. McDonnell, Deportation Shatters Family, L.A. Times (Mar. 14, 1998) (describing a teenage child s suicide in the wake of his father s deportation for sale of $10 of marijuana after 29 years of lawful residence); Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy 54 (2007), _0.pdf; see also Johnson v. Holder, 413 F. App x 435 (3d Cir. 2010), vacated in part as moot, 2011 U.S. App. LEXIS 2593 (3d Cir. Feb. 9, 2011); Ferguson v. Att y Gen. of U.S., 216 F. App x 217, 218 (3d Cir. 2007). 8

15 at (citing, inter alia, ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4 5.1(a), p. 197 (3d ed. 1993); National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation 6.2 (1995); G. Herman, Plea Bargaining 3.03, pp (1997); ABA Standards for Criminal Justice, Pleas of Guilty (f), p. 116 (3d ed. 1999)). The standards on which Padilla relied were in place even before See, e.g., Maryellen Fullerton & Noah Kingstein, Strategies for Ameliorating the Immigration Consequences of Criminal Convictions: A Guide for Defense Attorneys, 23 Am. Crim. L. Rev. 425, 445 (1986) ( Defense attorneys must educate themselves about the immigration consequences [of a plea;]... [o]therwise, the results could be drastic. ); ABA Standards for Criminal Justice, Pleas of Guilty, (2d ed & Supp. 1986) (defense attorneys should advise clients about deportation consequences of guilty pleas). At the time of petitioner Roselva Chaidez s conviction in 2003, prevailing professional norms dictated that attorneys inform their clients of the deportation consequences attaching to their guilty pleas. Many attorneys acted conscientiously in fulfilling this duty. Consider Donald Gutierrez, 3 a lawful permanent resident who has been in the United States for more than thirty years, after leaving the Philippines as a young teenager. His 3 Donald Gutierrez is a pseudonym, as requested by his counsel, who has provided a signed letter attesting to counsel s review of the account of Gutierrez s case contained in this brief. This document is on file with counsel for Amicus and is available at the Court s request. 9

16 father fought alongside American forces in the Philippines during World War II. Gutierrez married in the United States, and has two U.S. citizen children and a U.S. citizen grandchild. In 2009, Gutierrez s mother died, and he and his wife went through a brief separation. During this period Gutierrez was unable to find work, and slept in his car. Because he had been his mother s caretaker, he received benefits checks on her behalf. After she died, he did not report her death and continued to cash the checks. Gutierrez was charged with fraud under 18 U.S.C Gutierrez s counsel knew that the charge would qualify as fraud with a loss to the victim of more than $10,000, an aggravated felony under the INA. See 8 U.S.C. 1101(a)(43)(M)(i). Through a series of negotiations, she was able to convince prosecutors that Gutierrez s certain deportation was overly harsh punishment, and that he could better pay restitution while remaining in the United States. She obtained a diversion agreement for Gutierrez, under which he would pay restitution and perform community service at a senior citizens center. After one year, the charge was dismissed. Gutierrez is deeply remorseful about his crime, and breaks down in tears every time the topic comes up. After completing his community service, Gutierrez continued to volunteer at the senior citizens center because he felt he should do more to repay a country he loves. He volunteers there to this day. In grateful letters to his lawyer, Gutierrez conveyed his terror of returning to the Philippines; he does not know anybody there and cannot speak Tagalog. 10

17 Worse, he feared not being able to watch his American grandchild grow up, and banishment from his U.S. citizen children. Gutierrez was saved from this fate by his counsel s adherence to the prevailing professional norms recognized by Padilla. When Robert Rodriguez 4 was 18, Rodriguez helped a friend take the tailgate off a pickup truck. Rodriguez s friend had told him that he knew the owner of the truck, his ex-girlfriend, and said he wanted to play a prank on her. Rodriguez agreed to let his friend keep the tailgate at Rodriguez s house for the night, but the friend did not return to collect it. Rodriguez was charged with theft, an offense that would render him deportable to Mexico because it is a crime involving moral turpitude and his lawful permanent resident status was less than five years old. See 8 U.S.C. 1227(a)(2)(A)(i)(I). Rodriguez s trial attorney did not inform him of the deportation jeopardy resulting from a conviction, and Rodriguez pled guilty. He was ordered into deferred adjudication and required to pay restitution to the victim. Immigration and Customs Enforcement (ICE) initiated deportation proceedings against Rodriguez, and Rodriguez spent two years in immigration detention. Numerous people wrote letters of support for him, including teachers and the principal at his high school, guidance counselors, his soccer coach, mentors, neighbors he helps with yard work and 4 Robert Rodriguez is a pseudonym, as requested by his counsel, who has provided a signed letter attesting to counsel s review of the account of Rodriguez s case contained in this brief. This document is on file with counsel for Amicus and is available at the Court s request. 11

18 house-sitting, the pastor of his youth group, and other church pastors. A Texas state court ruled that Padilla is retroactive and granted Rodriguez a hearing to determine whether Rodriguez s attorney failed in his professional duties under Strickland and Padilla. The prosecutor subsequently agreed to vacate the plea agreement and formulate an agreement with Rodriguez s current attorney that would not render Rodriguez deportable. Chaidez will directly address the fates of valued community members like Robert Rodriguez. B. Defendants whose attorneys did not adhere to professional norms have been deported or are living in the shadow of deportation. For defendants whose attorneys failed to advise them of their guilty pleas immigration consequences, deportation has resulted even for minor offenses. For instance, one grandfather who had been a lawful permanent resident of the United States for 50 years was arrested when police found marijuana in his grandson s room. See Catholic Legal Immigration Network, Inc., The Impact of Our Immigration Laws and Policies on U.S. Families 41 (2000). Following his attorney s advice, the man pled guilty to drug possession. Twenty years later, at the age of 81, he was deported because of the conviction. Id. Jorge (George) Aguilar s case further illustrates the plight of clients whose lawyers failed to provide them effective assistance of counsel regarding deportation consequences before Padilla. 12

19 Aguilar emigrated to the United States legally from El Salvador in 1994, when he was 10 years old. Raised in Oklahoma, he became a lawful permanent resident. When Aguilar was 20, he and two friends stole electronics from three churches near their homes. In 2004, two years after Jose Padilla s conviction in Kentucky, Aguilar pled guilty to burglary on the advice of his attorney and received a deferred sentence. Aguilar s attorney did not inform him that his conviction would render him subject to deportation. The conviction changed Aguilar s life. He began attending church services at First Baptist Church of Broken Arrow, Oklahoma, one of the churches he had robbed. He volunteered to help immigrants learn English, earned his GED, and retained a steady job. The church members accepted George as one of their own. Senior Pastor Nick Garland has remarked that the congregation fell in love with him: I saw Jesus Christ change this young man. This was a life-changing commitment, and it was a beautiful process for him. See Ginnie Graham, Broken Arrow Immigrant s Case Calls Federal Laws into Question, Tulsa World (Nov. 20, 2011). 5 Aguilar paid his court-ordered fines and restitution, and completed community service required by the plea agreement. Five years after his guilty plea, the charges were expunged from Aguilar s record. By then, Aguilar was known as a young man who dug neighbors cars out of the snow, 5 This account also draws on correspondence between Amicus and Aguilar s counsel, which is on file with counsel for Amicus and available at the Court s request. 13

20 picked up strangers in the rain, and gave his lunches to homeless people he passed in the street. Like a son to Pastor Garland, Aguilar s goal in life is to become a youth minister advising troubled teenagers. Id. Deferred sentences and expungements, however, are considered to remain convictions for purposes of immigration law. See 8 U.S.C. 1101(a)(48)(A). In 2010, ICE initiated removal proceedings against Aguilar. He was incarcerated at the Tulsa jail for nine months as his case was heard. See Graham, Broken Arrow, supra. During his detention, Aguilar helped immigrants with document translation and led a Bible study group. Church members came once a week to see how he was doing, prayed for him at their services, and started a fund to pay his legal expenses. Id. Aguilar s criminal defense attorney signed an affidavit admitting that he failed to discuss the immigration consequences of Aguilar s plea agreement with him, but Aguilar was deported to El Salvador in late 2011, suddenly and with no warning to his family or girlfriend. If Aguilar s trial attorney had discussed immigration consequences with him before he pled guilty, the prosecutor might well have agreed to a different plea, as he was pleased by Aguilar s cooperation with police. It falls to this Court s assessment of Padilla s retroactivity to determine whether Aguilar can try to surmount the legal barriers to returning home. Emanuel Sumanariu also faces family 14

21 separation. 6 A native of Romania, Sumanariu came to the United States as a teenager with his entire family in the diversity visa lottery. See 8 U.S.C. 1153(c). Emanuel, his parents, and his sister have all lived in the United States as lawful permanent residents for fifteen years. As a teenager, Emanuel felt alienated as a foreigner, had a hard time adjusting to his new country, and made a few friends who were bad influences. He was arrested for using a stolen credit card in a Las Vegas casino. Sumanariu completed probation and paid restitution. In 2006, he started to become active in his church and got married. In the words of his wife, Alicia, he has 110% turned his life around. Sumanariu has been the sole provider for the family while Alicia, mother of his U.S. citizen child, attends nursing school. He has worked at the same job for nearly four years and received several promotions. Sumanariu has no family left in Romania his parents, sibling, grandparents, uncles, and cousins are all legal residents of the United States. If deported, Sumanariu would leave behind another U.S. citizen child from a prior relationship for whom he provides child support. Cf. Jonathan Baum et al., In the Child s Best Interest? The Consequences of Losing a Lawful Immigrant Parent to Deportation (2010). Alicia also has a child from a previous relationship. If her husband is deported, Alicia faces an impossible choice: does she stay in the United States with her son from another father, or does she 6 This account is drawn from correspondence between Amicus and counsel for Sumanariu, as well as his wife and sister. All documentation is on file with counsel for Amicus and available at the Court s request. 15

22 take her child with Emanuel to Romania so they can live as a family? Sumanariu was never told his offense could lead to deportation. On March 24, 2012, ICE arrested him. Sumanariu moved to withdraw his guilty plea, but the Nevada state court declined to defer ruling until this Court decides Chaidez. Sumanariu was ordered deported on June 21, 2012, and is currently in immigration detention. His wife fears losing the family home and being forced to file for bankruptcy. The children s health insurance has expired and Alicia relies on food stamps. Chaidez will control the future of this family. C. Because there is no statute of limitations on deportable offenses, Padilla s retroactivity is necessary for noncitizens convicted of low-level offenses without effective assistance of counsel to avoid being subject to deportation for the rest of their lives. There is no statute of limitations for deportation based on criminal offenses. Immigration officials can take years, and even decades, to initiate removal proceedings. Many longtime lawful residents of the United States therefore do not know that their convictions have rendered them deportable. For example, one 62-year-old barber from Ghana, who died in immigration detention in 2008, was in deportation proceedings based on a 1979 conviction for misdemeanor battery and retail theft. See Nina Bernstein, Officials Hid Truth of Immigrant Deaths in Jail, N. Y. Times (Jan. 9, 2010). 16