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Abstract

In 2010, the Supreme Court decided the landmark case of Padilla v. Kentucky. The Padilla Court's holding was that failure of counsel to advise a non-citizen criminal defendant about the immigration consequences of a guilty plea constitutes ineffective assistance of counsel. This article addresses whether Padilla applies to convictions that occurred before Padilla was decided, in March 2010.

First, this article provides background on relevant immigration law, Padilla v. Kentucky, and the Supreme Court's retroactivity case law. Then, this article considers how lower courts have addressed the issue of retroactivity in the approximately twenty-seven months after the Padilla decision. This article also provides in-depth analysis of circuit courts and state supreme courts which have addressed the retroactivity issue. This article then critically analyzes the common arguments for and against applying Padilla retroactively. Finally, this article proposes that Padilla apply to all non-citizens who have been deported as a result of ineffective assistance of counsel.

On April 30, 2012, the Supreme Court granted certiorari to decide the issue this article discusses. Although "confused and confusing," the Supreme Court's retroactivity case law supports a finding that Padilla applies retroactively. Similarly, fairness dictates that noncitizens who have received ineffective assistance of counsel, and been deported as a result, should be afforded a remedy. Common sense also dictates that Padilla applies retroactively. A plain reading of the Padilla case clearly imagines the retroactive effect of the Padilla holding. Moreover, the Supreme Court's application of the Padilla rule to Jose Padilla was, in every sense, similar to those who would benefit from Padilla being retroactive. For these reasons, precedent, fairness and common sense dictate that Padilla should apply retroactively.

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