Chaidez v. United States

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHAIDEZ v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 11–820. Argued November 1, 2012—Decided February 20, 2013
Immigration officials initiated removal proceedings against petitioner
Chaidez in 2009 upon learning that she had pleaded guilty to mail
fraud in 2004. To avoid removal, she sought to overturn that convic-
tion by filing a petition for a writ of coram nobis, contending that her
former attorney’s failure to advise her of the guilty plea’s immigra-
tion consequences constituted ineffective assistance of counsel under
the Sixth Amendment. While her petition was pending, this Court
held in Padilla v. Kentucky, 559 U.S. ___, that the Sixth Amendment
requires defense attorneys to inform non-citizen clients of the depor-
tation risks of guilty pleas. The District Court vacated Chaidez’s
conviction, determining that Padilla did not announce a “new rule”
under Teague v. Lane, 489 U.S. 288, and thus applied to Chaidez’s
case. The Seventh Circuit reversed, holding that Padilla had de-
clared a new rule and should not apply in a challenge to a final con-
viction.
Held: Padilla does not apply retroactively to cases already final on di-
rect review. Pp. 3−15.
(a) Under Teague, a person whose conviction is already final may
not benefit from a new rule of criminal procedure on collateral re-
view. A “case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became fi-
nal.” Teague, 489 U. S., at 301. And a holding is not so dictated un-
less it would have been “apparent to all reasonable jurists.” Lambrix
v. Singletary, 520 U.S. 518, 527−528. At the same time, a case does
not “announce a new rule, [when] it [is] merely an application of the
principle that governed” a prior decision to a different set of facts.
Teague, 489 U. S., at 307. Thus, garden-variety applications of the
test in Strickland v. Washington, 466 U.S. 668, for assessing ineffec-
2 CHAIDEZ v. UNITED STATES
Syllabus
tive assistance claims do not produce new rules, id., at 687−688.
But Padilla did more than just apply Strickland’s general standard
to yet another factual situation. Before deciding if failing to inform a
client about the risk of deportation “fell below [Strickland’s] objective
standard of reasonableness,” 466 U. S., at 688, Padilla first consid-
ered the threshold question whether advice about deportation was
“categorically removed” from the scope of the Sixth Amendment right
to counsel because it involved only a “collateral consequence” of a
conviction, rather than a component of a criminal sentence, 559 U. S.,
at ___. That is, prior to asking how the Strickland test applied, Pa-
dilla asked whether that test applied at all.
That preliminary question came to the Court unsettled. Hill v.
Lockhart, 474 U.S. 52, had explicitly left open whether the Sixth
Amendment right extends to collateral consequences. That left the
issue to the state and lower federal courts, and they almost unani-
mously concluded that the Sixth Amendment does not require attor-
neys to inform their clients of a conviction’s collateral consequences,
including deportation. Padilla’s contrary ruling thus answered an
open question about the Sixth Amendment’s reach, in a way that al-
tered the law of most jurisdictions. In so doing, Padilla broke new
ground and imposed a new obligation. Pp. 3−11.
(b) Chaidez argues that Padilla did no more than apply Strickland
to a new set of facts. But she ignores that Padilla had to develop new
law to determine that Strickland applied at all. The few lower court
decisions she cites held only that a lawyer may not affirmatively mis-
represent his expertise or otherwise actively mislead his client as to
any important matter. Those rulings do not apply to her case, and
they do not show that all reasonable judges thought that lawyers had
to advise their clients about deportation risks. Neither does INS v.
St. Cyr, 533 U.S. 289, have any relevance here. In saying that a rea-
sonably competent lawyer would tell a non-citizen client about a
guilty plea’s deportation consequences, St. Cyr did not determine that
the Sixth Amendment requires a lawyer to provide such information.
It took Padilla to decide that question. Pp. 11–15.
655 F.3d 684, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J.,
filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a
dissenting opinion, in which GINSBURG, J., joined.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–820
_________________
ROSELVA CHAIDEZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 20, 2013]
JUSTICE KAGAN delivered the opinion of the Court.
In Padilla v. Kentucky, 559 U.S. ___ (2010), this Court
held that the Sixth Amendment requires an attorney for
a criminal defendant to provide advice about the risk of
deportation arising from a guilty plea. We consider here
whether that ruling applies retroactively, so that a person
whose conviction became final before we decided Padilla
can benefit from it. We conclude that, under the prin­
ciples set out in Teague v. Lane, 489 U.S. 288 (1989),
Padilla does not have retroactive effect.
I
Petitioner Roselva Chaidez hails from Mexico, but be­
came a lawful permanent resident of the United States
in 1977. About 20 years later, she helped to defraud an
automobile insurance company out of $26,000. After
federal agents uncovered the scheme, Chaidez pleaded
guilty to two counts of mail fraud, in violation of 18
U.S. C. §1341. The District Court sentenced her to four
years of probation and ordered her to pay restitution.
Chaidez’s conviction became final in 2004.
Under federal immigration law, the offenses to which
Chaidez pleaded guilty are “aggravated felonies,” subject­
2 CHAIDEZ v. UNITED STATES
Opinion of the Court
ing her to mandatory removal from this country. See 8
U.S. C. §§1101(a)(43)(M)(i), 1227(a)(2)(A)(iii). But accord­
ing to Chaidez, her attorney never advised her of that fact,
and at the time of her plea she remained ignorant of it.
Immigration officials initiated removal proceedings
against Chaidez in 2009, after an application she made for
citizenship alerted them to her prior conviction. To avoid
removal, Chaidez sought to overturn that conviction by
filing a petition for a writ of coram nobis in Federal Dis­
trict Court.1 She argued that her former attorney’s failure
to advise her of the immigration consequences of pleading
guilty constituted ineffective assistance of counsel under
the Sixth Amendment.
While Chaidez’s petition was pending, this Court decided
Padilla. Our ruling vindicated Chaidez’s view of the
Sixth Amendment: We held that criminal defense attor­
neys must inform non-citizen clients of the risks of depor­
tation arising from guilty pleas. See 559 U. S., at ___ (slip
op., at 9). But the Government argued that Chaidez could
not benefit from Padilla because it announced a “new
rule” and, under Teague, such rules do not apply in collat­
eral challenges to already-final convictions.
The District Court determined that Padilla “did not
announce a new rule for Teague purposes,” and therefore
should apply to Chaidez’s case. 730 F. Supp. 2d 896, 904
(ND Ill. 2010). It then found that Chaidez’s counsel had
performed deficiently under Padilla and that Chaidez
suffered prejudice as a result. Accordingly, the court
vacated Chaidez’s conviction. See No. 03 CR 636–6, 2010
——————
1 A petition for a writ of coram nobis provides a way to collaterally
attack a criminal conviction for a person, like Chaidez, who is no longer
“in custody” and therefore cannot seek habeas relief under 28 U.S. C.
§2255 or §2241. See United States v. Morgan, 346 U.S. 502, 507, 510–
511 (1954). Chaidez and the Government agree that nothing in this
case turns on the difference between a coram nobis petition and a
habeas petition, and we assume without deciding that they are correct.
Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court
WL 3979664 (ND Ill., Oct. 6, 2010).
The United States Court of Appeals for the Seventh
Circuit reversed, holding that Padilla had declared a new
rule and so should not apply in a challenge to a final con­
viction. “Before Padilla,” the Seventh Circuit reasoned,
“the [Supreme] Court had never held that the Sixth
Amendment requires a criminal defense attorney to pro­
vide advice about matters not directly related to [a]
client’s criminal prosecution,” including the risks of deporta­
tion. 655 F.3d 684, 693 (2011). And state and lower
federal courts had uniformly concluded that an attorney
need not give “advice concerning [such a] collateral (as
opposed to direct) consequenc[e] of a guilty plea.” Id., at
690. According to the Seventh Circuit, Padilla’s holding
was new because it ran counter to that widely accepted
“distinction between direct and collateral consequences.”
655 F. 3d, at 691. Judge Williams dissented. Agreeing
with the Third Circuit’s view, she argued that Padilla
“broke no new ground” because it merely applied estab­
lished law about a lawyer’s “duty to consult” with a client.
655 F. 3d, at 695 (quoting United States v. Orocio, 645
F.3d 630, 638–639 (CA3 2011) (internal quotation marks
omitted)).
We granted certiorari, 566 U.S. ___ (2012), to resolve a
split among federal and state courts on whether Padilla
applies retroactively.2 Holding that it does not, we affirm
the Seventh Circuit.
II
Teague makes the retroactivity of our criminal proce­
——————
2 Compare 655 F.3d 684 (CA7 2011) (case below) (not retroactive);
United States v. Amer, 681 F.3d 211 (CA5 2012) (same); United States
v. Chang Hong, 671 F.3d 1147 (CA10 2011) (same); State v. Gaitan,
209 N. J. 339, 37 A.3d 1089 (2012) (same), with United States
v. Orocio, 645 F.3d 630 (CA3 2011) (retroactive); Commonwealth v.
Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011) (same).
4 CHAIDEZ v. UNITED STATES
Opinion of the Court
dure decisions turn on whether they are novel. When we
announce a “new rule,” a person whose conviction is al­
ready final may not benefit from the decision in a habeas
or similar proceeding.3 Only when we apply a settled rule
may a person avail herself of the decision on collateral
review. Here, Chaidez filed her coram nobis petition five
years after her guilty plea became final. Her challenge
therefore fails if Padilla declared a new rule.
“[A] case announces a new rule,” Teague explained,
“when it breaks new ground or imposes a new obligation”
on the government. 489 U. S., at 301. “To put it differ­
ently,” we continued, “a case announces a new rule if the
result was not dictated by precedent existing at the time
the defendant’s conviction became final.” Ibid. And a
holding is not so dictated, we later stated, unless it would
have been “apparent to all reasonable jurists.” Lambrix v.
Singletary, 520 U.S. 518, 527–528 (1997).
But that account has a flipside. Teague also made clear
that a case does not “announce a new rule, [when] it ‘[is]
merely an application of the principle that governed’ ” a
prior decision to a different set of facts. 489 U. S., at 307
(quoting Yates v. Aiken, 484 U.S. 211, 217 (1988)). As
JUSTICE KENNEDY has explained, “[w]here the beginning
point” of our analysis is a rule of “general application, a
rule designed for the specific purpose of evaluating a
myriad of factual contexts, it will be the infrequent case
that yields a result so novel that it forges a new rule, one
not dictated by precedent.” Wright v. West, 505 U.S. 277,
309 (1992) (concurring in judgment); see also Williams v.
Taylor, 529 U.S. 362, 391 (2000). Otherwise said, when
all we do is apply a general standard to the kind of factual
——————
3 Teague stated two exceptions: “[W]atershed rules of criminal proce­
dure” and rules placing “conduct beyond the power of the [government]
to proscribe” apply on collateral review, even if novel. 489 U. S., at 311
(internal quotation marks omitted). Chaidez does not argue that either
of those exceptions is relevant here.
Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court
circumstances it was meant to address, we will rarely
state a new rule for Teague purposes.
Because that is so, garden-variety applications of the
test in Strickland v. Washington, 466 U.S. 668 (1984), for
assessing claims of ineffective assistance of counsel do
not produce new rules. In Strickland, we held that legal
representation violates the Sixth Amendment if it falls
“below an objective standard of reasonableness,” as indi­
cated by “prevailing professional norms,” and the defend­
ant suffers prejudice as a result. Id., at 687–688. That
standard, we later concluded, “provides sufficient guidance
for resolving virtually all” claims of ineffective assistance,
even though their particular circumstances will differ.
Williams, 529 U. S., at 391. And so we have granted relief
under Strickland in diverse contexts without ever suggest­
ing that doing so required a new rule. See, e.g., ibid.;
Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith,
539 U.S. 510 (2003).4 In like manner, Padilla would not
have created a new rule had it only applied Strickland’s
general standard to yet another factual situation—that is,
had Padilla merely made clear that a lawyer who neglects
to inform a client about the risk of deportation is profes­
sionally incompetent.
But Padilla did something more. Before deciding if
failing to provide such advice “fell below an objective stan­
dard of reasonableness,” Padilla considered a threshold
question: Was advice about deportation “categorically
removed” from the scope of the Sixth Amendment right to
counsel because it involved only a “collateral consequence”
of a conviction, rather than a component of the criminal
——————
4 We did not consider Teague in Williams, Rompilla, and Wiggins, but
we granted habeas relief pursuant to 28 U.S. C. §2254(d)(1) because
state courts had unreasonably applied “clearly established” law. And,
as we have explained, “clearly established” law is not “new” within the
meaning of Teague. See Williams, 529 U. S., at 412.
6 CHAIDEZ v. UNITED STATES
Opinion of the Court
sentence? 559 U. S., at ___ (slip op., at 7–9).5 In other
words, prior to asking how the Strickland test applied
(“Did this attorney act unreasonably?”), Padilla asked
whether the Strickland test applied (“Should we even
evaluate if this attorney acted unreasonably?”). And as we
will describe, that preliminary question about Strickland’s
ambit came to the Padilla Court unsettled—so that the
Court’s answer (“Yes, Strickland governs here”) required a
new rule.
The relevant background begins with our decision in
Hill v. Lockhart, 474 U.S. 52 (1985), which explicitly left
open whether advice concerning a collateral consequence
must satisfy Sixth Amendment requirements. Hill pleaded
guilty to first-degree murder after his attorney misin­
formed him about his parole eligibility. In addressing his
claim of ineffective assistance, we first held that the
Strickland standard extends generally to the plea process.
See Hill, 474 U. S., at 57. We then determined, however,
that Hill had failed to allege prejudice from the lawyer’s
error and so could not prevail under that standard. See
id., at 60. That conclusion allowed us to avoid another,
more categorical question: whether advice about parole
(however inadequate and prejudicial) could possibly vio­
late the Sixth Amendment. The Court of Appeals, we
noted, had held “that parole eligibility is a collateral ra­
ther than a direct consequence of a guilty plea, of which a
defendant need not be informed.” Id., at 55. But our
ruling on prejudice made “it unnecessary to determine
whether there may be circumstances under which” ad-
——————
5 We have never attempted to delineate the world of “collateral conse­
quences,” see Padilla, 559 U. S., at ___, n. 8 (slip op., at 7, n. 8), nor do
we do so here. But other effects of a conviction commonly viewed as
collateral include civil commitment, civil forfeiture, sex offender regis­
tration, disqualification from public benefits, and disfranchisement.
See id., at ___ (ALITO, J., concurring in judgment) (slip op., at 2–3)
(listing other examples).
Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court
vice about a matter deemed collateral violates the Sixth
Amendment. Id., at 60.6
That non-decision left the state and lower federal courts
to deal with the issue; and they almost unanimously con­
cluded that the Sixth Amendment does not require attor­
neys to inform their clients of a conviction’s collateral
consequences, including deportation. All 10 federal appel­
late courts to consider the question decided, in the words
of one, that “counsel’s failure to inform a defendant of the
collateral consequences of a guilty plea is never” a viola­
tion of the Sixth Amendment. Santos-Sanchez v. United
States, 548 F.3d 327, 334 (CA5 2008).7 That constitutional
guarantee, another typical decision expounded, “assures
an accused of effective assistance of counsel in ‘criminal
prosecutions’ ”; accordingly, advice about matters like de-
portation, which are “not a part of or enmeshed in the
criminal proceeding,” does not fall within the Amend­
ment’s scope. United States v. George, 869 F.2d 333, 337
(CA7 1989). Appellate courts in almost 30 States agreed.8
——————
6 In saying that much, we declined to rule not only on whether advice
about a conviction’s collateral consequences falls outside the Sixth
Amendment’s scope, but also on whether parole eligibility should be
considered such a consequence, as the court of appeals held.
7 See Broomes v. Ashcroft, 358 F.3d 1251, 1256 (CA10 2004); United
States v. Fry, 322 F.3d 1198, 1200–1201 (CA9 2003); United States v.
Gonzalez, 202 F.3d 20, 25 (CA1 2000); Russo v. United States, 1999 WL
164951, *2 (CA2, Mar. 22, 1999); Ogunbase v. United States, 1991 WL
11619, *1 (CA6, Feb. 5, 1991); United States v. Del Rosario, 902 F.2d
55, 58–59 (CADC 1990); United States v. George, 869 F.2d 333, 337
(CA7 1989); United States v. Yearwood, 863 F.2d 6, 7–8 (CA4 1988);
United States v. Campbell, 778 F.2d 764, 768–769 (CA11 1985).
8 Rumpel v. State, 847 So. 2d 399, 402–405 (Ala. Crim. App. 2002);
Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972); State v. Rosas, 183
Ariz. 421, 423, 904 P.2d 1245, 1247 (App. 1995); Niver v. Commissioner
of Correction, 101 Conn. App. 1, 3–5, 919 A.2d 1073, 1075–1076 (2007)
(per curiam); State v. Christie, 655 A.2d 836, 841 (Del. Super. 1994);
Matos v. United States, 631 A.2d 28, 31–32 (D. C. 1993); Major v. State,
814 So. 2d 424, 431 (Fla. 2002); People v. Huante, 143 Ill. 2d 61, 68–71,
8 CHAIDEZ v. UNITED STATES
Opinion of the Court
By contrast, only two state courts held that an attorney
could violate the Sixth Amendment by failing to inform a
client about deportation risks or other collateral conse­
quences of a guilty plea.9 That imbalance led the authors
of the principal scholarly article on the subject to call the
exclusion of advice about collateral consequences from the
Sixth Amendment’s scope one of “the most widely recog­
nized rules of American law.” Chin & Holmes, Effective
Assistance of Counsel and the Consequences of Guilty
Pleas, 87 Cornell L. Rev. 697, 706 (2002).10
——————
571 N.E.2d 736, 740–741 (1991); State v. Ramirez, 636 N.W.2d 740,
743–746 (Iowa 2001); State v. Muriithi, 273 Kan. 952, 961, 46 P.3d
1145, 1152 (2002); Commonwealth v. Fuartado, 170 S.W.3d 384, 385–
386 (Ky. 2005); State v. Montalban, 2000–2739, p. 4 (La. 2/26/02), 810
So. 2d 1106, 1110; Commonwealth v. Fraire, 55 Mass. App. 916, 917,
774 N.E.2d 677, 678–679 (2002); People v. Davidovich, 463 Mich. 446,
452, 618 N.W.2d 579, 582 (2000) (per curiam); State ex rel. Nixon v.
Clark, 926 S.W.2d 22, 25 (Mo. App. 1996); State v. Zarate, 264 Neb.
690, 693–696, 651 N.W.2d 215, 221–223 (2002); Barajas v. State, 115
Nev. 440, 441–442, 991 P.2d 474, 475–476 (1999) (per curiam); State v.
Chung, 210 N. J. Super. 427, 434, 510 A.2d 72, 76 (App. Div. 1986);
People v. Ford, 86 N.Y. 2d 397, 403–404, 657 N.E.2d 265, 268–269
(1995); State v. Dalman, 520 N.W.2d 860, 863–864 (N. D. 1994);
Commonwealth v. Frometa, 520 Pa. 552, 555–557, 555 A.2d 92, 93–94
(1989); State v. Alejo, 655 A.2d 692, 692–693 (R. I. 1995); Nikolaev v.
Weber, 2005 S. D. 100, ¶¶11–12, 705 N.W.2d 72, 75–77 (per curiam);
Bautista v. State, 160 S.W.3d 917, 922 (Tenn. Crim. App. 2004); Perez
v. State, 31 S.W.3d 365, 367–368 (Tex. App. 2000); State v. Rojas-
Martinez, 2005 UT 86, ¶¶15–20, 125 P.3d 930, 934–935; State v.
Martinez-Lazo, 100 Wash. App. 869, 876–878, 999 P.2d 1275, 1279–
1280 (2000); State v. Santos, 136 Wis. 2d 528, 531, 401 N.W.2d 856,
858 (App. 1987).
9 People v. Pozo, 746 P.2d 523, 527–529 (Colo. 1987); State v. Paredez,
2004–NMSC–036, ¶¶17–19, 136 N. M. 533, 539, 101 P.3d 799, 805.
10 The dissent is therefore wrong to claim that we emphasize “the
absence of lower court authority” holding that an attorney’s failure to
advise about deportation violated the Sixth Amendment. Post, at 10
(opinion of SOTOMAYOR, J.). We instead point to the presence of lower
court authority—in case after case and jurisdiction after jurisdiction—
holding that such a failure, because relating to a collateral matter,
Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court
So when we decided Padilla, we answered a question
about the Sixth Amendment’s reach that we had left open,
in a way that altered the law of most jurisdictions—and
our reasoning reflected that we were doing as much. In
the normal Strickland case, a court begins by evaluating
the reasonableness of an attorney’s conduct in light of
professional norms, and then assesses prejudice. But as
earlier indicated, see supra, at 5–6, Padilla had a different
starting point. Before asking whether the performance
of Padilla’s attorney was deficient under Strickland, we
considered (in a separately numbered part of the opinion)
whether Strickland applied at all. See 559 U. S., at ___
(slip op., at 7–9). Many courts, we acknowledged, had
excluded advice about collateral matters from the Sixth
Amendment’s ambit; and deportation, because the conse­
quence of a distinct civil proceeding, could well be viewed
as such a matter. See id., at ___ (slip op., at 7). But, we
continued, no decision of our own committed us to “appl[y]
a distinction between direct and collateral consequences to
define the scope” of the right to counsel. Id., at ___ (slip
op., at 8). And however apt that distinction might be in
other contexts, it should not exempt from Sixth Amend­
ment scrutiny a lawyer’s advice (or non-advice) about
a plea’s deportation risk. Deportation, we stated, is
“unique.” Ibid. It is a “particularly severe” penalty, and
one “intimately related to the criminal process”; indeed,
immigration statutes make it “nearly an automatic result”
of some convictions. Ibid. We thus resolved the threshold
question before us by breaching the previously chink-free
wall between direct and collateral consequences: Notwith­
standing the then-dominant view, “Strickland applies to
Padilla’s claim.” Id., at ___ (slip op., at 9).
If that does not count as “break[ing] new ground” or
“impos[ing] a new obligation,” we are hard pressed to
——————
could not do so.
10 CHAIDEZ v. UNITED STATES
Opinion of the Court
know what would. Teague, 489 U. S., at 301. Before
Padilla, we had declined to decide whether the Sixth
Amendment had any relevance to a lawyer’s advice about
matters not part of a criminal proceeding. Perhaps some
advice of that kind would have to meet Strickland’s rea­
sonableness standard—but then again, perhaps not: No
precedent of our own “dictated” the answer. Teague, 489
U. S., at 301. And as the lower courts filled the vacuum,
they almost uniformly insisted on what Padilla called the
“categorica[l] remov[al]” of advice about a conviction’s non­
criminal consequences—including deportation—from the
Sixth Amendment’s scope. 559 U. S., at ___ (slip op., at 9).
It was Padilla that first rejected that categorical ap­
proach—and so made the Strickland test operative—when
a criminal lawyer gives (or fails to give) advice about
immigration consequences.11 In acknowledging that fact,
we do not cast doubt on, or at all denigrate, Padilla.
Courts often need to, and do, break new ground; it is the
very premise of Teague that a decision can be right and
also be novel. All we say here is that Padilla’s holding
that the failure to advise about a non-criminal conse­
——————
11 The separate opinions in Padilla objected to just this aspect of the
Court’s ruling. Dissents have been known to exaggerate the novelty
of majority opinions; and “the mere existence of a dissent,” like the
existence of conflicting authority in state or lower federal courts, does
not establish that a rule is new. Beard v. Banks, 542 U.S. 406, 416,
n. 5 (2004); see Williams, 529 U. S., at 410. But the concurring and
dissenting opinions in Padilla were on to something when they de­
scribed the line the Court was crossing. “Until today,” JUSTICE ALITO
wrote, “the longstanding and unanimous position of the federal courts
was that reasonable defense counsel generally need only advise a client
about the direct consequences of a criminal conviction.” See 559 U. S.,
at ___ (concurring in judgment) (slip op., at 2). Or again, this time from
JUSTICE SCALIA: “[U]ntil today,” the Sixth Amendment guaranteed only
“legal advice directly related to defense against prosecution” of a
criminal charge. Id., at ___ (dissenting) (slip op., at 2). One need not
agree with any of the separate opinions’ criticisms of Padilla to concur
with their view that it modified governing law.
Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court
quence could violate the Sixth Amendment would not have
been—in fact, was not—“apparent to all reasonable ju­
rists” prior to our decision. Lambrix, 520 U. S., at 527–
528. Padilla thus announced a “new rule.”
III
Chaidez offers, and the dissent largely adopts, a differ­
ent account of Padilla, in which we did no more than
apply Strickland to a new set of facts. On Chaidez’s view,
Strickland insisted “[f]rom its inception” that all aspects of
a criminal lawyer’s performance pass a test of “ ‘reasona­
bleness under prevailing professional norms’ ”: The deci­
sion thus foreclosed any “categorical distinction between
direct and collateral consequences.” Brief for Petitioner
21–22 (emphasis deleted) (quoting Strickland, 466 U. S.,
at 688). Indeed, Chaidez contends, courts prior to Padilla
recognized Strickland’s all-encompassing scope and so
applied its reasonableness standard to advice concerning
deportation. See Brief for Petitioner 25–26; Reply Brief
10–12. She here points to caselaw in three federal appeals
courts allowing ineffective assistance claims when attor­
neys affirmatively misled their clients about the deporta­
tion consequences of guilty pleas.12 The only question left
for Padilla to resolve, Chaidez claims, was whether pro­
fessional norms also require criminal lawyers to volunteer
advice about the risk of deportation. In addressing that
issue, she continues, Padilla did a run-of-the-mill Strick-
land analysis. And more: It did an especially easy Strick-
land analysis. We had earlier noted in INS v. St. Cyr, 533
U.S. 289 (2001)—a case raising an issue of immigration
law unrelated to the Sixth Amendment—that a “compe­
tent defense counsel” would inform his client about a
guilty plea’s deportation consequences. Id., at 323, n. 50.
——————
12 See United States v. Kwan, 407 F.3d 1005, 1015–1017 (CA9 2005);
United States v. Couto, 311 F.3d 179, 188 (CA2 2002); Downs-Morgan
v. United States, 765 F.2d 1534, 1540–1541 (CA11 1985).
12 CHAIDEZ v. UNITED STATES
Opinion of the Court
All Padilla had to do, Chaidez concludes, was recite that
prior finding.
But Chaidez’s (and the dissent’s) story line is wrong, for
reasons we have mostly already noted: Padilla had to
develop new law, establishing that the Sixth Amendment
applied at all, before it could assess the performance of
Padilla’s lawyer under Strickland. See supra, at 5–6, 9.
Our first order of business was thus to consider whether
the widely accepted distinction between direct and collat­
eral consequences categorically foreclosed Padilla’s claim,
whatever the level of his attorney’s performance. We did
not think, as Chaidez argues, that Strickland barred
resort to that distinction. Far from it: Even in Padilla we
did not eschew the direct-collateral divide across the
board. See 559 U. S., at ___ (slip op., at 8) (“Whether that
distinction is [generally] appropriate is a question we need
not consider in this case”). Rather, we relied on the spe­
cial “nature of deportation”—the severity of the penalty
and the “automatic” way it follows from conviction—to
show that “[t]he collateral versus direct distinction [was]
ill-suited” to dispose of Padilla’s claim. Id., at ___ (slip op.,
at 8–9). All that reasoning came before we conducted a
Strickland analysis (by examining professional norms and
so forth), and none of it followed ineluctably from prior
law.13
——————
13 The dissent’s entire analysis founders on this most basic point. In
its lengthy description of Padilla, the dissent picks up in the middle—
after the Court concluded that the direct-collateral distinction did not
preclude finding that Padilla’s lawyer provided ineffective assistance
under the Sixth Amendment. See post, at 3–5. The dissent justifies
ignoring that threshold conclusion on the ground that “Padilla declined
to embrace the . . . distinction between collateral and direct conse­
quences” and “stated very clearly that it found the distinction irrele­
vant” to the case. Post, at 6. But it is exactly in refusing to apply the
direct-collateral distinction that the Padilla Court did something novel.
Before then, as the Court forthrightly acknowledged, that distinction
would have doomed Padilla’s claim in well-nigh every court in the
Cite as: 568 U. S. ____ (2013) 13
Opinion of the Court
Predictably, then, the caselaw Chaidez and the dissent
cite fails to support their claim that lower courts “accepted
that Strickland applied to deportation advice.” Brief for
Petitioner 25; see post, at 8–11. True enough, three fed-
eral circuits (and a handful of state courts) held before Pa-
dilla that misstatements about deportation could support
an ineffective assistance claim. But those decisions rea­
soned only that a lawyer may not affirmatively misrepre­
sent his expertise or otherwise actively mislead his client
on any important matter, however related to a criminal
prosecution. See, e.g., United States v. Kwan, 407 F.3d
1005, 1015–1017 (CA9 2005). They co-existed happily
with precedent, from the same jurisdictions (and almost
all others), holding that deportation is not “so unique as to
warrant an exception to the general rule that a defendant
need not be advised of the [collateral] consequences of a
guilty plea.” United States v. Campbell, 778 F.2d 764,
769 (CA11 1985).14 So at most, Chaidez has shown that a
minority of courts recognized a separate rule for material
misrepresentations, regardless whether they concerned
deportation or another collateral matter. That limited
rule does not apply to Chaidez’s case. And because it lived
in harmony with the exclusion of claims like hers from the
Sixth Amendment, it does not establish what she needs
to—that all reasonable judges, prior to Padilla, thought
they were living in a Padilla-like world.
Nor, finally, does St. Cyr have any relevance here. That
——————
United States. See 559 U. S., at ___ (slip op., at 7); supra, at 9.
14 See also Resendiz v. Kovensky, 416 F.3d 952, 957 (CA9 2005)
(“[B]ecause immigration consequences remain collateral, the failure of
counsel to advise his client of the potential immigration consequences
of a conviction does not violate the Sixth Amendment”); Russo v. United
States, 1999 WL 164951, *2 (“[C]ounsel cannot be found ineffective for
the mere failure to inform a defendant of the collateral consequences of
a plea, such as deportation”) (relying on United States v. Santelises, 509
F.2d 703, 704 (CA2 1975) (per curiam)).
14 CHAIDEZ v. UNITED STATES
Opinion of the Court
decision stated what is common sense (and what we again
recognized in Padilla): A reasonably competent lawyer will
tell a non-citizen client about a guilty plea’s deportation
consequences because “ ‘[p]reserving the client’s right to
remain in the United States may be more important to the
client than any potential jail sentence.’ ” Padilla, 559
U. S., at ___ (slip op., at 10) (quoting St. Cyr, 533 U. S., at
322). But in saying that much, St. Cyr did not determine
that the Sixth Amendment requires a lawyer to provide
such information. Courts had held to the contrary not
because advice about deportation was insignificant to a
client—really, who could think that, whether before or
after St. Cyr?—but because it concerned a matter collat­
eral to the criminal prosecution.15 On those courts’ view,
the Sixth Amendment no more demanded competent
advice about a plea’s deportation consequences than it
demanded competent representation in the deportation
process itself. Padilla decided that view was wrong. But
to repeat: It was Padilla that did so. In the years follow­
ing St. Cyr, not a single state or lower federal court con­
sidering a lawyer’s failure to provide deportation advice
——————
15 The dissent claims the opposite, averring that lower court “deci­
sions show nothing more than that the underlying professional norms
had not yet evolved to require attorneys to provide advice about depor­
tation consequences.” Post, at 8. But the dissent cannot point to a
single decision stating that a lawyer’s failure to offer advice about
deportation met professional norms; all the decisions instead held that
a lawyer’s breach of those norms was constitutionally irrelevant be­
cause deportation was a collateral consequence. See supra, at 7. Had
courts in fact considered professional standards in the slew of cases
before Padilla that presented Padilla-like claims, they would have
discovered as early as 1968 that the American Bar Association in­
structed criminal lawyers to advise their non-citizen clients about the
risks of deportation. See 3 ABA Project on Standards for Criminal
Justice, Standards Relating to Pleas of Guilty §3.2(b), Commentary,
p. 71 (App. Draft 1968). The difficulty in upholding such claims prior to
Padilla had nothing to do with courts’ view of professional norms and
everything to do with their use of the direct-collateral divide.
Cite as: 568 U. S. ____ (2013) 15
Opinion of the Court
abandoned the distinction between direct and collateral
consequences, and several courts reaffirmed that divide.
See, e.g., Santos-Sanchez, 548 F. 3d, at 335–336; Broomes
v. Ashcroft, 358 F.3d 1251, 1256–1257 (CA10 2004);
United States v. Fry, 322 F.3d 1198, 1200–1201 (CA9 2003).
It took Padilla to decide that in assessing such a lawyer’s
performance, the Sixth Amendment sets the standard.16
IV
This Court announced a new rule in Padilla. Under
Teague, defendants whose convictions became final prior
to Padilla therefore cannot benefit from its holding. We
accordingly affirm the judgment of the Court of Appeals
for the Seventh Circuit.
It is so ordered.
——————
16 Chaidez makes two back-up arguments in her merits briefs—that
Teague’s bar on retroactivity does not apply when a petitioner chal­
lenges a federal conviction, or at least does not do so when she makes a
claim of ineffective assistance. Brief for Petitioner 27–39. But Chaidez
did not include those issues in her petition for certiorari. Nor, still
more critically, did she adequately raise them in the lower courts. Only
her petition for rehearing en banc in the Seventh Circuit at all ques­
tioned Teague’s applicability, and her argument there—that a “Teague­
light” standard should apply to challenges to federal convictions—
differs from the ones she has made in this Court. See Petition for
Rehearing and for Rehearing En Banc in No. 10–3623 (CA7), p. 13.
Moreover, we cannot find any case in which a federal court has consid­
ered Chaidez’s contention that Teague should not apply to ineffective
assistance claims. “[M]indful that we are a court of review, not of first
view,” we decline to rule on Chaidez’s new arguments. Cutter v. Wil-
kinson, 544 U.S. 709, 718, n. 7 (2005).
Cite as: 568 U. S. ____ (2013) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–820
_________________
ROSELVA CHAIDEZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 20, 2013]
JUSTICE THOMAS, concurring in the judgment.
In Padilla v. Kentucky, 559 U.S. 356 (2010), this Court
held that the Sixth Amendment requires an attorney for
a criminal defendant to apprise his client of the risk of
deportation created by a guilty plea. I dissented. The
Sixth Amendment provides that “[i]n all criminal prosecu-
tions,” an accused enjoys the right “to have the Assistance
of Counsel for his defence.” By its terms, this right ex-
tends “to legal advice directly related to defense against
prosecution of the charged offense,” and “[t]here is no
basis in text or in principle” to expand the reach of this
guarantee to guidance concerning the collateral conse-
quences of a guilty plea. Id., at ___ (slip op., at 2–3)
(SCALIA, J., dissenting). Today, the Court finds that Pa-
dilla announced a new rule of constitutional law and that,
under our decision in Teague v. Lane, 489 U.S. 288(1989), “defendants whose convictions became final prior to
Padilla therefore cannot benefit from its holding.” Ante, at
15. I continue to believe that Padilla was wrongly decided
and that the Sixth Amendment does not extend—either
prospectively or retrospectively—to advice concerning the
collateral consequences arising from a guilty plea. I, there-
fore, believe that the Teague analysis is unnecessary and
thus concur only in the judgment.
Cite as: 568 U. S. ____ (2013) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–820
_________________
ROSELVA CHAIDEZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 20, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
The Court holds today that Padilla v. Kentucky, 559
U.S. ___ (2010), announced a “new” rule within the mean­
ing of Teague v. Lane, 489 U.S. 288, 301 (1989), and so
does not apply to convictions that became final before its
announcement. That is wrong, because Padilla did noth­
ing more than apply the existing rule of Strickland v.
Washington, 466 U.S. 668 (1984), in a new setting, the
same way the Court has done repeatedly in the past: by
surveying the relevant professional norms and conclud-
ing that they unequivocally required attorneys to provide
advice about the immigration consequences of a guilty
plea. Because Padilla fell squarely within the metes and
bounds established by Strickland, I respectfully dissent.
I
A
The majority correctly sets forth the governing legal
principles under Teague and Strickland. Ante, at 4–5.
The Teague inquiry turns centrally on the “nature of the
rule” in question, and for that reason, “[w]here the begin­
ning point is a rule of . . . general application, . . . it will be
the infrequent case that yields a result so novel that it
forges a new rule.” Wright v. West, 505 U.S. 277, 308–309
(1992) (KENNEDY, J., concurring in judgment); see ante, at
2 CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
4–5. The majority makes the important observation that
“when all we do is apply a general standard to the kind
of factual circumstances it was meant to address, we will
rarely state a new rule.” Ibid. It makes sense, then, that
“garden-variety applications of . . . Strickland . . . do not
produce new rules.” Ante, at 5.
In Strickland, we did not provide a comprehensive def-
inition of deficient performance, and instead held that
“[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.” 466 U. S., at 688. Strickland’s reasonableness
prong therefore takes its content from the standards by
which lawyers judge their professional obligations, ibid.,
and those standards are subject to change. That is why,
despite the many different settings in which it has been
applied, we have never found that an application of Strick-
land resulted in a new rule.1
Significantly, we have previously found that applica­
tions of Strickland to new factual scenarios are not barred
under 28 U.S. C. §2254(d)(1) of the Antiterrorism and
Effective Death Penalty Act (AEDPA). Section 2254(d)(1)
precludes habeas relief unless a state court decision vio­
lates “clearly established Federal law,” which, as relevant
here, largely overlaps with the inquiry under Teague of
whether a decision was “dictated by precedent.” 489 U. S.,
——————
1 See,
e.g., Lafler v. Cooper, 566 U.S. ___, ___–___ (2012) (incorrect
advice leading to a plea offer’s rejection); Rompilla v. Beard, 545 U.S.
374 (2005) (failure to investigate evidence the prosecution intended to
use to prove an aggravating circumstance in a capital case); Wiggins v.
Smith, 539 U.S. 510 (2003) (failure to investigate a defendant’s social
history in a capital case); Roe v. Flores-Ortega, 528 U.S. 470 (2000)
(failure to consult with a defendant regarding whether to pursue an
appeal); Williams v. Taylor, 529 U.S. 362, 391 (2000) (failure to inves­
tigate a defendant’s background for the purposes of mitigation evidence
in a capital case); Hill v. Lockhart, 474 U.S. 52 (1985) (failure to pro-
vide effective assistance during plea negotiations).
Cite as: 568 U. S. ____ (2013) 3
SOTOMAYOR, J., dissenting
at 301 (plurality opinion).2 In Wiggins v. Smith, 539 U.S.
510, 522 (2003), for example, we found that Williams v.
Taylor, 529 U.S. 362 (2000), “made no new law” when it
held that Strickland extended to an attorney’s responsibil­
ity to conduct a background investigation in a capital case.
Rather, we explained that “in referring to the ABA Stand­
ards for Criminal Justice as guides, [Williams] applied
the same ‘clearly established’ precedent of Strickland we
apply today.” 539 U. S., at 522. Similarly, in Lafler v.
Cooper, 566 U.S. ___, ___, ___–___ (2012) (slip op., at 6,
14–16), we rejected the argument advanced by the Solici­
tor General that the Sixth Amendment did not extend to
advice about a plea offer because it did not impact the
fairness of the trial. Instead, we simply held that Strick-
land applied to this form of attorney misconduct.
In short, where we merely apply Strickland in a way
that corresponds to an evolution in professional norms, we
make no new law.
B
Contrary to the majority’s reconstruction, Padilla is
built squarely on the foundation laid out by Strickland.
Padilla relied upon controlling precedent. It began by
reciting the basic rule that “[u]nder Strickland, we first
determine whether counsel’s representation ‘fell below an
objective standard of reasonableness.’ ” Padilla, 559 U. S.,
at ___ (slip op., at 9) (quoting Strickland, 466 U. S., at
688). We recognized that “[t]he first prong—constitutional
deficiency—is necessarily linked to the practice and expec­
tations of the legal community: ‘[t]he proper measure of
——————
2 AEDPA of course differs from the Teague rule in other important
respects. See, e.g., Greene v. Fisher, 565 U.S. ___, ___ (2011) (slip op.,
at 5). But these differences aside, the fact that we have repeatedly
found AEDPA cases involving Strickland to be controlled by established
precedent underscores that the application of Strickland in a new
context should almost never result in a new rule.
4 CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
attorney performance remains reasonableness under pre-
vailing professional norms.’ ” Padilla, 559 U. S., at ___ (slip
op., at 9) (quoting Strickland, 466 U. S., at 688).
We therefore examined the substantial changes in fed-
eral immigration law that provided the backdrop to the
relevant professional standards. Padilla, 559 U. S., at ___
(slip op., at 2–6). Pursuant to the Immigration Act of
1917, 39 Stat. 889–890, a judge could recommend that a
defendant who had committed a deportable offense not
be removed from the country. Congress entirely eliminated
this procedure in 1990. 104 Stat. 5050. Then the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), 110 Stat. 3009–596, abolished the Attor-
ney General’s authority to grant discretionary relief from
removal for all but a small number of offenses. Padilla,
559 U. S., at ___ (slip op., at 6). These changes in immi­
gration law meant that for a noncitizen who committed
a removable offense, “removal [had become] practically
inevitable.” Ibid.
In parallel with these developments, the standards of
professional responsibility relating to immigration had
become more demanding. “For at least the past 15 years,”
we observed in Padilla, “professional norms have gener-
ally imposed an obligation on counsel to provide advice on
the deportation consequences of a client’s plea.” Id., at ___
(slip op., at 15). Citing an array of practice guides and
professional responsibility manuals, we noted that “[t]he
weight of prevailing professional norms supports the view
that counsel must advise her client regarding the risk of
deportation.” Id., at ___ (slip op., at 9). Indeed, “authori­
ties of every stripe—including the American Bar Associa­
tion, criminal defense and public defender organizations,
authoritative treatises, and state and city bar publica­
tions—universally require defense attorneys to advise as
to the risk of deportation consequences for non-citizen
clients.” Id., at ___ (slip op., at 10) (internal quotation
Cite as: 568 U. S. ____ (2013) 5
SOTOMAYOR, J., dissenting
marks omitted).
We drew further support for our conclusion that profes­
sional standards required advice about deportation conse­
quences from our decision in INS v. St. Cyr, 533 U.S. 289(2001). See Padilla, 559 U. S., at ___ (slip op., at 10–11)
(citing St. Cyr, 533 U. S., at 323). In St. Cyr, we had
explained that the availability of discretionary relief from
removal was critical to a noncitizen’s decision to accept a
plea offer, and expected counsel to follow the instructions
of “numerous practice guides,” such as the ABA’s Stand­
ards for Criminal Justice, to inform themselves of the
possible immigration consequences of a plea. Padilla, 559
U. S., at ___ (slip op., at 11) (citing St. Cyr, 533 U. S., at
323, n. 50); see id., at 322, n. 48. And we there found that
many States already required that a trial judge advise
defendants of the same. Ibid. St. Cyr thus “recognized
that ‘preserving the client’s right to remain in the United
States may be more important to the client than any
potential jail sentence.’ ” Padilla, 559 U. S., at ___ (slip
op., at 10) (quoting St. Cyr, 533 U. S., at 322).
Our application of Strickland in Padilla followed natu­
rally from these earlier observations about changes in
immigration law and the accompanying evolution of pro­
fessional norms. When we decided St. Cyr and Padilla,
nothing about Strickland’s substance or applicability had
changed. The only difference from prior law was that
the underlying professional norms had changed such that
counsel’s failure to give this advice now amounted to
constitutionally deficient performance.3 Both before Pa-
——————
3 Even before IIRIRA and St. Cyr, lawyers of course understood that
it was good practice to inform clients of the deportation consequences of
a plea. See ante, at 14, n. 15 (citing 3 ABA Project on Standards for
Criminal Justice, Standards Relating to Pleas of Guilty §3.2(b), Com­
mentary, p. 71 (App. Draft 1968)). Following the sea change in immi­
gration law, however, the professional norms had become so established
and universally recognized that the measure of constitutionally ade­
6 CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
dilla and after, counsel was obligated to follow the rele­
vant professional norms. It was only because those norms
reflected changes in immigration law that Padilla reached
the result it did, not because the Sixth Amendment right
had changed at all.
II
A
Accepting that routine applications of Strickland do not
result in new rules, the majority nevertheless holds that
Padilla went a step further. In its view, Padilla “ ‘br[oke]
new ground’ ” by addressing the threshold question of
whether advice about deportation is a collateral conse­
quence of a criminal conviction that falls within the scope
of the Sixth Amendment. Ante, at 9–10. But that is
wrong, because Padilla declined to embrace the very
distinction between collateral and direct consequences of a
criminal conviction that the majority says it did. In fact,
the Court stated very clearly that it found the distinction
irrelevant for the purposes of determining a defense law­
yer’s obligation to provide advice about the immigration
consequences of a plea. 559 U. S., at ___, n. 8 (slip op.,
at 7, n. 8). We asserted that we had “never applied a dis­
tinction between direct and collateral consequences to
define the scope of constitutionally ‘reasonable professional
assistance’ required under Strickland,” and concluded that
“[w]hether that distinction is appropriate is a question we
need not consider in this case.” Id., at ___ (slip op., at 8)
(emphasis added). The distinction was “ill suited” to the
task at hand, we explained, because deportation has a
“close connection to the criminal process,” and is “uniquely
difficult to classify as either a direct or a collateral conse­
quence.” Id., at ___ (slip op., at 8–9). Indeed, “[o]ur law
——————
quate performance now included giving such advice in the form Padilla
recognized. See 559 U. S., at ___ (slip op., at 10).
Cite as: 568 U. S. ____ (2013) 7
SOTOMAYOR, J., dissenting
ha[d] enmeshed criminal convictions and the penalty of de-
portation for nearly a century,” and we had “long recog­
nized” that deportation is “particularly severe.” Id., at ___
(slip op., at 8).4
At bottom, then, the majority’s argument hinges upon a
distinction the Court has never embraced and that Padilla
found irrelevant to the issue it ultimately decided. With­
out this revision to our recent decisional history, the ma­
jority’s analysis unravels.
B
The majority finds that the “legal landscape,” Graham v.
Collins, 506 U.S. 461, 468 (1993), before Padilla was
nearly uniform in its rejection of Strickland’s application
to the deportation consequences of a plea. Ante, at 7–10.
It concludes that the lower courts were generally in
agreement that the Sixth Amendment did not require
attorneys to inform clients of the collateral consequences
of a plea, and that this weighs heavily in favor of finding
that Padilla announced a new rule. Ante, at 7–8, nn. 7, 8.
But the majority’s discussion of these precedents operates
at too high a level of generality and fails to account for the
——————
4 See, e.g., INS v. St. Cyr, 533 U.S. 289, 322 (2001) (noting that
“[p]reserving the client’s right to remain in the United States may be
more important . . . than any potential jail sentence” (internal quota­
tion marks omitted)); Jordan v. De George, 341 U.S. 223, 243 (1951)
(Jackson, J., dissenting) (deportation proceedings “practically . . . are
[criminal] for they extend the criminal process of sentencing to include
on the same convictions an additional punishment”); Fong Haw Tan v.
Phelan, 333 U.S. 6, 10 (1948) (“[D]eportation is a drastic measure and
at times the equivalent of banishment or exile”); Ng Fung Ho v. White,
259 U.S. 276, 284 (1922) (deportation may result in “loss of both
property and life; or of all that makes life worth living”); Fong Yue Ting
v. United States, 149 U.S. 698, 740 (1893) (Brewer, J., dissenting)
(“Every one knows that to be forcibly taken away from home, and
family, and friends, and business, and property, and sent across the
ocean to a distant land, is punishment; and that oftentimes most severe
and cruel”).
8 CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
development of professional standards over time. St. Cyr
noted the importance of advising clients about immigra­
tion consequences was of recent vintage, indeed more re-
cent than some of the cases the majority cites. See 533
U. S., at 322–323. The Court relies upon decisions issued
over a period that spans more than 30 years. See ante, at
7–8, nn. 7, 8. Nearly half of them (17) were decided before
the enactment of IIRIRA. See ibid. And all but two of
the Federal Court of Appeals cases were decided before St.
Cyr. See ante, at 7–8, nn. 7, 8. These earlier decisions
show nothing more than that the underlying professional
norms had not yet evolved to require attorneys to provide
advice about deportation consequences.
Cases from the period following IIRIRA and St. Cyr
undermine the majority’s generalizations about the state
of the law before Padilla. Deportation had long been un-
derstood by lower courts to present “the most difficult”
penalty to classify as either a collateral or direct conse­
quence. United States v. Russell, 686 F.2d 35, 38 (CADC
1982); cf. Janvier v. United States, 793 F.2d 449, 455
(CA2 1986) (holding that Strickland applied to advice
about a judicial recommendation against deportation).
Eventually, and in parallel with changes in federal immi­
gration law and the corresponding professional norms, the
lower courts had acknowledged an important qualification
to the collateral consequences rule. After the passage of
IIRIRA and this Court’s decision in St. Cyr, many courts
concluded that a lawyer’s affirmative misstatements about
the immigration consequences of a guilty plea can consti­
tute deficient performance under Strickland. Indeed, each
Federal Court of Appeals to address the question after St.
Cyr so held. See United States v. Couto, 311 F.3d 179,
188 (CA2 2002); United States v. Kwan, 407 F.3d 1005,
1015 (CA9 2005); cf. Downs-Morgan v. United States, 765
Cite as: 568 U. S. ____ (2013) 9
SOTOMAYOR, J., dissenting
F. 2d 1534, 1540–1541 (CA11 1985).5 State-court deci­
sions from this period were in accord and relied upon
similar reasoning.6
These decisions created an important exception to the
collateral/direct consequences distinction. They also fore­
shadowed the Court’s reasoning in Padilla by basing their
analysis of the relevant professional norms on the special
nature of deportation, the ABA standards governing im­
migration practice, and the Court’s assessment of those
standards in St Cyr. See Kwan, 407 F. 3d, at 1016 (“That
counsel may have misled [the defendant] out of ignorance
is no excuse. It is a basic rule of professional conduct that
a lawyer must . . . [remain] abreast of changes in the
law and its practice. . . . Counsel’s performance . . . fell be-
low the [ABA]’s ethical standard for criminal defense at-
torneys with respect to immigration consequences. The
Supreme Court noted this standard in [St. Cyr]”); Couto,
311 F. 3d, at 187–191 (citing St. Cyr and the relevant ABA
standards, and concluding that “recent Supreme Court
authority supports [a] broader view of attorney responsi­
bility” that encompasses affirmative misrepresentations
——————
5 See United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (ED Va.
1995) (“[T]he clear consensus is that an affirmative misstatement
regarding deportation may constitute ineffective assistance”).
6 See Rubio v. State, 124 Nev. 1032, 1041, 194 P.3d 1224, 1230 (2008)
(per curiam) (“Like other jurisdictions, we recognize the particularly
harsh and penal nature of deportation. The Supreme Court of the
United States has described deportation as ‘a drastic measure and at
times the equivalent of banishment or exile’ and further depicted it as
‘a penalty.’ . . . Perhaps understanding the harshness of deportation, a
growing number of jurisdictions have adopted the affirmative misrepre­
sentation exception to the collateral consequence rule”); People v.
Correa, 108 Ill. 2d 541, 550–552, 485 N.E.2d 307, 311 (1985); People v.
McDonald, 1 N.Y. 3d 109, 113–115, 802 N.E.2d 131, 134–135 (2003);
see also Alguno v. State, 892 So. 2d 1200, 1201 (Fla. App. 2005)
(per curiam); State v. Rojas-Martinez, 2005 UT 86 ¶¶ 15–20, 125 P.3d
930, 933–935; In re Yim, 139 Wash. 2d 581, 588, 989 P.2d 512, 516
(1999).
10 CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
about deportation consequences); see also Downs-Morgan,
765 F. 2d, at 1541 (“[D]eportation and exclusion [are]
harsh consequences”).
The majority believes that these decisions did not mean­
ingfully alter the state of the law in the lower courts be­
fore Padilla, because they merely applied the age-old
principle that a lawyer may not affirmatively mislead a
client. Ante, at 12–13. But, as explained, the reasoning of
these cases renders that characterization at best incom­
plete. See, e.g., Kwan, 407 F. 3d, at 1016. While these
lower court precedents are consistent with the general
principle that attorneys should not mislead clients by
providing incorrect advice, they did not rest primarily on
that rule. Rather, they recognized the significant changes
in professional norms that predated Padilla and that we
had noted in St. Cyr. As a consequence, the “wall between
direct and collateral consequences” that the lower courts
had erected, ante, at 9, had already been dealt a serious
blow by the time the Court decided Padilla.
As the majority points out, these misrepresentation
cases stopped short of imposing an affirmative obligation
on lawyers to consult with clients about the consequences
of deportation. Ante, at 12–13. But the majority places
too much emphasis on the absence of lower court authority
finding that an attorney’s omissions with respect to depor­
tation resulted in ineffective assistance. The distinction
between omissions and affirmative misrepresentations on
which these lower court cases depended cannot be recon­
ciled with Strickland. In Padilla itself, we rejected the
Solicitor General’s suggestion that Strickland should
apply to advice about the immigration consequences of a
plea only in cases where defense counsel makes an affirm­
ative misstatement. Padilla, 559 U. S., at ___ (slip op., at
12). We did so because we found that Strickland was
incompatible with the distinction between an obligation to
give advice and a prohibition on affirmative misstate­
Cite as: 568 U. S. ____ (2013) 11
SOTOMAYOR, J., dissenting
ments. 559 U. S., at ___ (slip op., at 12–13) (citing Strick-
land, 466 U. S., at 690). Strickland made clear that its
standard of attorney performance applied to both “acts”
and “omissions,” and that a rule limiting the performance
inquiry to one or the other was too narrow. 466 U. S.,
at 690. Thus, the distinction between misrepresentations
and omissions, on which the majority relies in classifying
lower court precedent, implies a categorical rule that is
inconsistent with Strickland’s requirement of a case-by­
case assessment of an attorney’s performance.7 Id., at
688–689; see, e.g., Roe v. Flores-Ortega, 528 U.S. 470, 479
(2000). In short, that some courts have differentiated
between misleading by silence and affirmative misrep-
resentation hardly establishes the rationality of the dis­
tinction. Notably, the Court offers no reasoned basis for
believing that such a distinction can be extracted from
Strickland.
To be sure, lower courts did continue to apply the dis­
tinction between collateral and direct consequences after
St. Cyr. See ante, at 13–14; see, e.g., Broomes v. Ashcroft,
358 F.3d 1251, 1256–1257 (CA10 2004). Even so, and
even assuming the misrepresentation cases did not call
the distinction into question, the existence of these lower
court decisions is not dispositive. “[T]he standard for
determining when a case establishes a new rule is ‘objec­
tive,’ and the mere existence of conflicting authority does
——————
7 The majority cites a law review article for the proposition that the
categorical consequences rule is “one of ‘the most widely recognized
rules of American law.’ ” Ante, at 8 (quoting Chin & Holmes, Effective
Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell
L. Rev. 697, 706 (2002)). But the article was, in fact, quite critical of
the rule. The authors explained that “[t]he real work of the conviction
is performed by the collateral consequences,” and that the direct/
collateral distinction in the context of ineffective-assistance claims
was “surprising because it seems inconsistent with the framework that
the Supreme Court . . . laid out” in Strickland. Chin & Holmes, at
700–701.
12 CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
not necessarily mean a rule is new.” Wright, 505 U. S., at
304 (O’Connor, J., concurring in judgment) (citing Stringer
v. Black, 503 U.S. 222, 237 (1992)); see Graham v. Col-
lins, 506 U.S. 461, 506 (1993) (Souter, J., dissenting).
Where the application of Strickland was straightfor­
ward, rooted in 15 years of professional standards and the
Court’s prior St. Cyr decision, there is no reason to put
these lower court cases, many from more than a decade
earlier, ahead of this Court’s simple and clear reasoning in
Padilla. Nevertheless, the majority reaches the paradoxi­
cal conclusion that by declining to apply a collateral­
consequence doctrine the Court had never adopted, Pa-
dilla announced a new rule.
III
What truly appears to drive the majority’s analysis is its
sense that Padilla occasioned a serious disruption in lower
court decisional reasoning. See, e.g., ante, at 9–10 (“If that
does not count as ‘break[ing] new ground’ . . . we are hard
pressed to know what would” (quoting Teague, 489 U. S.,
at 301)). The concurring and dissenting opinions in Pa-
dilla similarly reflected the impression that it was a sig­
nificant and destabilizing decision. See 559 U. S., at ___
(ALITO, J., concurring in judgment) (slip op., at 3); id., at
___ (SCALIA, J., dissenting) (slip op., at 5) (describing the
majority opinion as a “sledge hammer”); ante, at 8–9, n.
10. But the fact that a decision was perceived as momen­
tous or consequential, particularly by those who disagreed
with it, does not control in the Teague analysis. Faithfully
applying the Teague rule depends instead on an examina­
tion of this Court’s reasoning and an objective assessment
of the precedent at issue. Stringer, 503 U. S., at 237. In
Padilla, we did nothing more than apply Strickland. By
holding to the contrary, today’s decision deprives defend­
ants of the fundamental protection of Strickland, which
requires that lawyers comply with professional norms
Cite as: 568 U. S. ____ (2013) 13
SOTOMAYOR, J., dissenting
with respect to any advice they provide to clients.
* * *
Accordingly, I would reverse the judgment of the Sev­
enth Circuit and hold that Padilla applies retroactively on
collateral review to convictions that became final before its
announcement. With respect, I dissent.