Retroactivity of Immigration Status in Criminal Cases

In February 2012, the Michigan Court of Appeals, in People v Gomez, held that the U.S. Supreme Court decision in Padilla v Kentucky 559 US (2010) cannot be applied retroactively.

The Michigan Court of Appeals, following Padilla v Kentucky, held that the Sixth Amendment of the Constitution requires defense counsel to provide expert advice to a non-citizen defendant regarding the consequences of a guilty plea on immigration status, and that, if a non-citizen defendant does not receive such advice, s/he may claim ineffective defense counsel.

This specific case arose when Isaac Gomez, a lawful, permanent resident of the United States, "moved for relief from judgment in the trial court" after receiving notification that his no-contest plea five years prior "rendered him subject to deportation." Gomez argued that neither his defense counsel nor the trial court had explained the effect his no-contest plea may have had on his immigration status. He subsequently claimed under Padilla that his counsel had been ineffective and thus his conviction should be reversed.

The Michigan Court of Appeals held that Padilla is not retroactive because it did not pertain to private, individual conduct or to procedures that are considered implicit in criminal proceedings. The Court of Appeals also held that to allow retroactive application of Padilla would allow any non-citizen offender to negate a previous guilty plea because of the effect it has had on his/her immigration status. No prior Michigan appellate opinion supports this method of guilty-plea withdrawal. The Michigan Court of Appeals thus held that criminal proceedings under Padilla must only be applied prospectively, not retroactively.