In 2010, the Supreme Court of the United States, in the case of Padilla v. Kentucky, 559 U.S. 356 (2010), held that a defense attorney’s failure to advise the defendant concerning the risk of removal fell below the objective standard of reasonable professional assistance guaranteed by the Sixth Amendment. Since then, certain defendants who pled to criminal offenses that resulted in adverse immigration consequences have been able to challenge their pleas based on the holding in Padilla. On February 20, 2013, in Chaidez v. United States, 133 S. Ct. 1103 (2013), the U.S. Supreme Court declined to apply Padilla retroactively, leaving it up to individual states to find independent state law grounds upon which to hold Padilla retroactive.
In Ramirez v. State, No. 33,604, slip op. (N.M. June 19, 2014), the New Mexico Supreme Court held that Padilla applies retroactively to September 1, 1990. Individuals with convictions obtained in the state of New Mexico on or after September 1, 1990, may be able to avoid the immigration consequences of such convictions under certain circumstances. New Mexico joined the high courts of Massachusettsand New Jersey in applying Padilla retroactively. Other state Supreme Courts, such as Florida, have refused to hold Padilla retroactive.
It is important to seek advice from experienced immigration counsel when evaluating the immigration consequences of criminal activities.