Padilla v. Kentucky: Gideon for Foreign Nationals

On March 3, The Constitution Project, on behalf of its National Right to Counsel Committee, submitted an amicus brief to the U.S. Supreme Court in support of the petitioner’s application for certiorari in the case of Ifenatuora v. United States.

The petitioner, Cals C. Ifenatuora, is a lawful permanent U.S. resident from Nigeria.  In Nigeria, Mr. Ifenatuora and his family suffered extensive persecution by the government where his father, mother, brothers and uncle were all hanged or shot by the Nigerian government.  Mr. Ifenatuora immigrated to the United States in 1982 and he and his wife have three children, all of whom are U.S. citizens.  In 1992, Mr. Ifenatuora was convicted of mail fraud in Maryland (the “Maryland Conviction”).  His counsel advised him to plead guilty, but failed to advise him of the immigration consequences of his plea.  DHS detained Mr. Ifenatuora since 2009 in its effort to seek deportation of him back to Nigeria due to his conviction.  In 2010, Mr. Ifenatuora filed a writ to challenge his underlying Maryland conviction, arguing that he received ineffective assistance of counsel because he was not advised of immigration consequences under Padilla v. Kentucky.

TCP’s Ifenatuora brief raises two important questions relating to the Court’s post-Padilla jurisprudence.  The first is that the non-retroactivity principle announced in Teague v. Lane should not apply to ineffective-assistance of counsel claims raised in a federal defendant’s first post-conviction challenge.  The second is that the rule established in Padilla v. Kentucky—that the 6th Amendment requires counsel to inform his or her client of the immigration consequences of conviction—is a “watershed” rule of criminal procedure exempt from Teague.  TCP’s brief explains that “[j]ust as Gideon revolutionized the way that the criminal justice system dealt with indigents, so too does Padilla revolutionize the way in which the system deals with aliens.”  And for a foreign national such as Mr. Ifenatuora, the immigration consequences of conviction are often far more grave than those posed by the prospect of a criminal conviction.

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