Justices uphold deportation over criminal record

— The U.S. Supreme Court refused Wednesday to block the deportation of a Chicago woman and thousands of other non-citizens who pleaded guilty in the past to serious crimes and were not warned by their lawyers that a criminal record targeted them for removal.

The decision highlights the stark consequences for non-citizens who have criminal records. The current law calls for mandatory deportation of illegal aliens and legal immigrants who have an “aggravated felony” on their records. The term can describe a variety of state and federal offenses.

Immigration lawyers say tens of thousands of non-citizens, many of them lawful permanent residents, plead guilty each year to crimes that may lead to deportation.

Three years ago, the high court ruled that lawyers had a duty to warn non-citizens of the prospect that a guilty plea would lead to deportation.

But in a 7-2 ruling Wednesday, the justices said their earlier decision cannot be applied retroactively to extend relief to those who pleaded guilty to serious offenses before 2010.

Wednesday’s decision came in the case of Roselva Chaidez, a Chicago woman who was born in Mexico. She has lived in Chicago for decades and had been a lawful permanent resident since 1977. Her lawyers said she has three children and two grandchildren.

In 1998, she admitted to receiving $1,200 from an insurance company for falsely claiming she was injured in an auto accident. The scheme, run by her son and others, netted $26,000, the government said.

Chaidez pleaded guilty to two counts of mail fraud, was sentenced to probation and was required to repay $22,000, the total amount received by her and her son. She completed her sentence and had paid her restitution by 2004.

When she later applied for naturalization, she learned that pleading guilty to mail fraud involving more than $10,000 meant that she was subject to deportation.

Chaidez filed a court petition in 2009 seeking to have her conviction overturned on the grounds that her lawyer failed to warn her of the consequences of her guilty plea.

The Supreme Court ruled in 2010 in the case of Padilla v. Kentucky that a lawyer’s error in failing to warn a non-citizen of the consequences of a guilty plea gave the defendant a right to seek a new trial.

In Chicago, U.S. District Judge Joan Gottschall ruled for Chaidez and set aside her conviction. But the 7th U.S. Circuit Court of Appeals disagreed in a 2-1 decision and said the Chicago woman could not take advantage of the high court’s ruling to challenge her conviction.

Wednesday, in Chaidez v. United States, the high court agreed with the appeals court and refused to extend its earlier decision to aid those who pleaded guilty before the ruling.

Justice Elena Kagan said that the 2010 ruling amounted to a major change in the law, and the court has not applied such changes retroactively to old cases.

The ruling marked a rare split between President Barack Obama’s two appointees. While Kagan spoke for the majority, Justice Sonia Sotomayor filed a dissent, joined by Justice Ruth Bader Ginsburg.

Sotomayor argued that the 2010 decision simply made clear that lawyers had a duty to advise their clients on the law. “Today’s decision deprives defendants of the fundamental protection” that goes with having a competent lawyer,she said.

In other business Wednesday, the Supreme Court ruled that a Michigan defendant cannot be retried for arson even though his initial acquittal was based on a judge’s mistake.

The court voted 8-1 Wednesday in favor of Lamar Evans, who was charged with arson after he was seen running away from a burning vacant house in Detroit with a gasoline can in his hand.

A judge acquitted Evans midway through his trial based on a mistaken interpretation of the law.

Sotomayor said for the court that the acquittal is final, even if granted in error. Justice Samuel Alito dissented.

The case is Evans v. Michigan, 11-1327.

Meanwhile, the court seemed conflicted Wednesday over whether it was legal for Virginia to block out-of-staters from using its Freedom of Information Act to get some of its state documents.

Justices seemed to come down on all sides during arguments over whether Rhode Island resident Mark McBurney and California resident Roger Hurlbert were illegally blocked from getting public documents in Virginia that in-state residents could have easily gotten. Virginia’s Freedom of Information law limits access to state residents and some media outlets.

The two men said limited access to the protections of the state’s law is unconstitutional, especially considering the growing commerce potential of public records.

But Virginia’s solicitor general, E. Duncan Getchell Jr., argued his state has the right to reserve some services and records for its taxpayers, who pay the cost for creating and maintaining public records. Getchell noted that Virginia already limits some things to its own residents, like in-state tuition at colleges and universities, some business subsidies and welfare payments.

But Justice Anthony Kennedy and Sotomayor called Virginia’s actions discriminatory during the arguments.

McBurney and Hurlbert, along with data and media companies, challenged the state law under the Constitution’s Privileges and Immunities Clause - which prohibits states from discriminating against out-of-staters in favor of its own residents - and the Commerce Clause, which prohibits discrimination against interstate commerce. Hurlbert owns Sage Information Services, which obtains public realestate assessments for private clients. McBurney, a former Virginia resident, wanted to get documents from a Virginia child-welfare agency involving a child-support petition from his divorce from his wife.

The 4th U.S. Circuit Court of Appeals in Richmond threw this case out, but the 3rd Circuit Court of Appeals in Philadelphia struck down a similar citizens-only Freedom of Information Act in Delaware. Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey also have some form of law that limits access to public records for nonresidents, according to court briefs.

The cost to Virginia to allow out-of-staters to get documents instead of blocking them “doesn’t seem like that big a deal,” Chief Justice John Roberts said.

He also said an out-of-stater could pay a Virginian to get the documents for him.

“All he has to do is get somebody from Virginia to ask for him,” Roberts said.

Information for this article was contributed by David G. Savage of the Tribune Washington Bureau and by Jesse J. Holland and staff members of The Associated Press.

Front Section, Pages 2 on 02/21/2013

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