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Mandatory Deportation Warning Isn't Retroactive

By William Vogeler, Esq. on December 06, 2017 | Last updated on March 21, 2019

Maybe it's time that you criminal defense attorneys -- particularly when representing immigrants -- wear badges that say: "You may be deported if you are convicted."

That's because the U.S. Supreme Court ruled that criminal defense attorneys have a duty to inform clients about possible immigration consequences of pleading guilty. It's required to provide effective counsel under the Sixth Amendment, the High Court said seven years ago in Padilla v. Kentucky.

But what if you messed up eight years ago? Well lucky for you, that's another case -- Barajas v. United States of America.

New Rule

In 2009, Roberto Barajas made the mistake of knowingly possessing a stolen firearm. It was an "aggravated felony" under federal immigration law, so he was deported to Mexico after serving a four-month prison sentence.

In 2010, after the U.S. Supreme Court ruled in Padilla, Barajas filed a petition to attack his conviction on the grounds that his lawyer failed to tell him that he could be deported. A trial judge granted the petition, but the government appealed.

While the appeal was pending, the High Court said in another case that Padilla established a "new rule," and could not be applied retroactively. That changed everything for Barajas, who wound up with his back against the wall.

The U.S. Eighth Circuit Court of Appeals said it would follow other circuits that had considered the issue. The Second, Fourth, Seventh, and Tenth circuits said the Teague doctrine applied to federal and state convictions.

"Expressed Doubt"

Although the Ninth and Sixth circuits have "begun to express doubt," the Eighth Circuit noted, the Teague doctrine protected "the finanility of criminal convictions."

"Teague's bar on the retroactive application of new rules prevents convictions from being upended by every subsequent change in the law," the appeals panel said.

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