In the past several years, there have been new federal cases that developed a requirement that criminal defense attorneys owed a duty to their clients to advise them of the immigration consequences of certain guilty pleas. The U.S. Supreme Court issued the Padilla vs. Kentucky ruling in 2010, which set this doctrine out. However, the issue then became whether this ruling was retroactive. In other words, could an individual try to reopen an old 1989 criminal case by alleging that his criminal defense public defender didn’t tell him that pleading guilty would land him in deportation proceedings? Well, that issue was resolved by the Supreme Court in a follow-up case (the Chaidez case). The Court held that the Padilla doctrine was not retroactive. So, in my example, the individual could not have his 1989 criminal case reopened since he had not constitutional right to be advised of the immigration consequences.
So, jump to the most recent ruling by the New Mexico Supreme court which essentially rejected the Chaidez ruling and held that in state court criminal cases, Padilla is retroactive so old cases might be collaterally attacked on the advisement issue. We’ll see if other states begin doing the same thing.