Practice Advisory

In Chaidez v. United States, 568 U.S. _____, ____S.Ct.____, 2013 WL 610201, (February 20, 2013) the U.S. Supreme Court held that Padilla v. Kentucky, 559 U.S. 356 (2010) was a “new rule” that did not apply retroactively to convictions final before March 31, 2010. In Padilla, the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen about the immigration consequences of a guilty plea.
Testimony before an IJ may not be used to characterize an offense, or to link two documents from the record of conviction.  A Ninth Circuit panel has withdrawn a very bad opinion on the modified categorical approach and substituted a substantially better one.
Planes v. Holder (9th Cir. July 5, 2011): Criminal defenders must assume that filing a timely direct appeal of right will not prevent a conviction from having immigration effect. This is a change in the law, created by Planes v. Holder, supra. Advocates will file a petition for rehearing and there is a good chance that this will be granted, and a reasonable chance, although no guarantee, that Planes may be reversed.
Warning: Immigrant Defendants with a First Minor Drug Offense: “Rehabilitative relief” will no longer eliminate a first conviction for simple possession for immigration purposes, unless the conviction occurred before 7/14/11