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Can decision in Padilla v. Kentucky be retroactively applied?

For many undocumented immigrants living in the United States, one of the scariest possibilities is being deported to the country of their birth. These deportations can arise in many different situations that all may not be aware of.

One situation that has caused some who are in the U.S. without authorization to have return to their previous homes is when those individuals plead guilty to a crime without being aware of all of the consequences. In some of these cases, the guilty plea is for something that few would believe makes them a threat to society, such as a traffic offense.

There are of course many people throughout the nation dealing with this issue. One of them is a woman who in 2009, while seeking an adjustment of status, admitted that she had pled guilty to the crime of mail fraud related to motor vehicle insurance, several years prior. At the time of the admission, the woman was considered a lawful permanent U.S. resident. As a result of the disclosure however, the woman, a citizen of Mexico, was set to be deported.

She challenged that deportation order however on the grounds that the attorney she was working with at the time of the criminal prosecution, did not inform her that a guilty plea could be enough to send her back to the country of her birth. Under Supreme Court case Padilla v. Kentucky, non-citizens of the U.S. need to be informed by their attorneys that deportation could be a consequence of pleading guilty. That decision was rendered in 2010.

Now, the Supreme Court of the United States must decide the timing associated with that ruling. The woman in this case has suggested that the decision in Padilla should retroactively apply to her case. Thus far, federal appellate courts have had differing opinions on the matter. There will certainly be more to come on this next spring once the court has made its decision.

Source: Reuters, "Supreme Court weighs expanded warnings on deportation risk," Jonathon Stempel, Nov. 1, 2012

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