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Supreme Court weighs expanded warnings on deportation risk

By Jonathan Stempel

WASHINGTON (Reuters) - With the future of thousands of immigrants at stake, the Supreme Court on Thursday considered whether to extend a rule that requires lawyers to tell clients who are not citizens that they can be deported if they plead guilty to crimes.

A decision could prove significant to non-citizens who had ineffective counsel before March 2010, when the court, in Padilla v. Kentucky, said immigrants deserve to be told at least some consequences of guilty pleas.

Federal appeals courts have since divided on whether the decision should apply retroactively.

Thursday's case involved Roselva Chaidez, a Mexican citizen and lawful permanent U.S. resident in Chicago.

In 2009, while unsuccessfully trying to become a naturalized citizen, Chaidez disclosed her guilty plea six years earlier for mail fraud in an automobile insurance scheme.

She challenged the government's decision to remove her from the country, saying her lawyer in the criminal case had never told her that she could be deported for pleading guilty.

But the 7th U.S. Circuit Court of Appeals in Chicago found in August 2011 that the Padilla case introduced a new constitutional rule of law. This would hurt claims such as Chaidez's because, under a 1989 Supreme Court decision, such new rules do not apply retroactively.

Jeffrey Fisher, a Stanford Law School professor arguing Chaidez's appeal, told the Supreme Court that Padilla merely confirmed a longstanding rule that criminal defendants deserved reasonably effective counsel who could provide advice.

But Justice Antonin Scalia suggested that Fisher's argument was too sweeping because all decisions draw on earlier law. "We always cite some preexisting principle," he said.

COMMON SENSE

In contrast, Justice Stephen Breyer suggested that advising clients about the consequences of their actions is what lawyers normally do.

"I would have thought it was common sense that a lawyer would tell a client that terrible things are going to happen to you if you plead guilty," he said.

The federal government countered that the Supreme Court decision in the 2010 Padilla case did announce a new rule.

It noted that four justices in that case found there was no duty to advise of deportation risk, and that 10 federal appeals courts had previously found no such duty.

"We might all share an intuition that good lawyers should advise their clients about the panoply of consequences that they will experience by pleading guilty," but that had not been the law, Deputy Solicitor General Michael Dreeben told the justices.

Twenty-eight U.S. states endorsed the U.S. position, fearing demands by thousands of aliens to withdraw their guilty pleas.

These states said that applying Padilla retroactively would bottle up courthouses, and often lead to new trials or outright freedom for admitted criminals.

The decision in Chaidez, expected by the end of June, will likely affect several immigration cases awaiting Supreme Court review.

The case is Chaidez v. United States, U.S. Supreme Court, No. 11-820.

(Reporting by Jonathan Stempel; Editing by Howard Goller and Doina Chiacu)

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