U.S. Supreme Court ruling affects many immigrant convicts in South Florida

02/20/2013 6:24 PM

02/20/2013 9:32 PM

A U.S. Supreme Court ruling Wednesday shuts the door on appeals for hundreds of Floridians convicted in the past of crimes for which they could be deported.

The high court, in Chaidez v. United States , ruled that immigrants convicted of certain crimes before 2010 cannot appeal their cases if their criminal defense lawyer did not properly warn them of deportation.

Wednesday’s decision followed up on the court’s 2010 ruling throwing out the conviction of military veteran Jose Padilla, whose lawyer failed to warn him he faced deportation to his native Honduras when pleading guilty to marijuana smuggling in Kentucky.

After the ruling in Padilla v. Kentucky , thousands of convicted immigrants — fearing deportation, or some ordered deported — asked lower courts across the country to throw out their convictions. That included Roselva Chaidez, a longtime U.S. resident from Mexico convicted in Chicago of auto insurance fraud.

But seven of nine justices said Wednesday that the Padilla ruling established “new law” and was not legally “retroactive.” Under federal law, non-citizens convicted of an “aggravated felony” can be deported.

The U.S. Attorney General’s Office had also argued that applying Padilla retroactively “would be overwhelming to the administration of justice” — flooding the courts with thousands of cases, most of them so old that witnesses or evidence in the cases have disappeared.

South Florida defense attorneys greeted Wednesday’s ruling with dismay.

“There will be an increase in voluntary departures, only the ‘voluntariness’ will be based on the fact that there is no recourse if the person’s case pre-dated Padilla ... an increase in orders of deportations and in increase in money spent to supervise people who cannot be deported to countries such as Cuba,” said defense attorney Maggie Arias, who along with Benji Waxman argued the issue before Miami’s appeals court.

“They’ve cut the legs out of anyone who would have recourse in criminal court based on bad advice — or no advice — from a criminal defense lawyer.”

Two Supreme Court justices, Sonia Sotomayor and Ruth Bader Ginsburg, dissented.

The issue of “retroactivity” had been particularly vexing in immigrant-rich South Florida, and several Miami cases had made their way through the appellate courts.

One such case: Gabriel Hernandez, who arrived in the United States from Nicaragua when he was 2 years old. Now 30 and a legal resident, he boasts a bachelor’s degree and works as a successful computer network administrator for a Miami bank group.

His one blemish occurred when he was 19 years old. He was arrested on charges of selling LSD.

In an outcome typical for first-time offenders, Hernandez pleaded guilty and accepted a year of probation in return for a promise that no felony conviction would appear on his record. But Hernandez insists he never understood that the plea deal could wind up getting him deported to Nicaragua.

Miami’s Third District Court of Appeals denied Hernandez’s bid to throw out the conviction based on the Padilla case. The Florida Supreme Court, in November, upheld the ruling.

Hernandez’s lawyer, Michael Vastine, was chagrined by Wednesday’s court decision.

“From here on out, Florida immigration judges are going to be deporting people for crimes that are constitutionally suspect,” Vastine said. “I find that a little bit galling.”

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