Retroactive Roselva: A Story with a Warning

Sad Story
Roselva Chaidez, a legal U.S. Resident – not a citizen – lives in the U.S. along with her three children and two grandchildren, all of whom are bona fide American citizens. She was born in Mexico and had been a lawful permanent resident since 1977. However, in 2003, under a lawyer's advice regarding a plea agreement, she plead guilty in an accident insurance scam. She had illegally received $1,200 by falsely claiming to be a victim in a car accident. She received four years probation as a result of her plea agreement.

End of Story
A person makes a poor choice, ends up in trouble with the law, and does her time. That's a rather typical end for a rather typical American story – law broken, justice served, society placated. But the story doesn't end there. Roselva applied for citizenship in 2007, thinking that her debt to society had indeed been paid. “Not so!” said immigration authorities. They denied her application for citizenship and sought to deport her because of her single conviction. Her crime is regarded as an aggravated felony and grounds for deportation of even legal U.S. residents.

Continuing Story
As matters have come to light, during her criminal trial Roselva's attorney never disclosed to her the possibility that her plea agreement of guilty could lead to her deportation. Roselva did not discover the issue until she applied for citizenship. She figured she'd done the time to pay for the crime. As a last ditch effort to stay in America with her family, Roselva is applying for relief by virtue of the Sixth Amendment of the U.S. Constitution which guarantees any defendant in U.S. Courts the right to competent legal representation in courts of law.

Telling the Story to the Judges
Though the court has always been strong about incompetent counsel, it has not been really clear about how that should affect immigrants. In 2010, the Supreme Court held that a lawyer has a constitutional duty to advise a client – who is not an American citizen – that pleading guilty to a criminal offense could lead to being deported. So, if a lawyer fails to do that, the client does indeed have a claim regarding ineffective counsel under the Sixth Amendment, even as an immigrant, and thus has a qualified plea in immigration proceedings.

​

---

Though there are some other legal considerations, precedent exists as it is set in the language of the 2010 case, and some other previous cases, that matters regarding immigrants and incompetent attorneys can be considered retroactively regarding criminal proceedings and how they affect immigrants. 

One Story, Many Issues
Roselva did her time. Roselva had a lousy lawyer when she was in criminal court. Now Roselva is facing deportation and alienation from her close family. Sometimes the mills of the law grind up lives a little too finely. Roselva may have made a bad choice, but she doesn't deserve what may befall her, especially if she could have been advised by competent counsel when she faced a criminal conviction. Her attorney probably didn't have a clue as to how her status as an immigrant would have been affected by her plea bargain. Roselva herself has even stated that she would have accepted far harsher punishment in return for allowance to remain in America with her loved ones.

The Morals of the Story
If anything is to be learned from this story, it's the admonition that you better have competent counsel when faced with a legal or criminal problem, especially if you are looking to become a citizen. Another thing to consider from this story is that if you are having problems with attaining legal status because of a past conviction, there may be a Sixth Amendment reprieve if incompetent counsel regarding your immigrant status can be proven.

Happy Endings
When Roselva's ruling comes through, the immigrant community may experience some relief. But, filing for relief from deportation under the premise of having a conviction overturned that is causing that deportation, is a very complicated process. So many maze-like avenues exist; they can range through dealings with immigration courts, state courts, district courts, filings of injunctions, and myriad other complications.

Don't Write the Story Yourself
If you are on unsure ground regarding your immigrant status, don't attempt a foray into such a legal morass as unfolded above without a competent immigration attorney. This case alone shows that belaboring clients to seek effective guidance from the outset of any legal proceeding is the only way to ensure happy endings. Incompetent counsel has always been a problem; after all, the American founders wrote the Sixth Amendment more than two-hundred years ago – and based that on ancient knowledge. Thanks to Roselva, maybe we'll soon have an update for American immigrants.