Student Project: Padilla v. Kentucky - Immigration Consequences of a Conviction: Secondary Sources

"The categorical approach looks only to the statutory definition of the offense of conviction to determine whether the statute defining the crime of conviction categorically fits within the generic federal definition. The "modified" categorical approach, on the other hand, applies when a statute punishes some conduct that satisfies the elements of a federal crime but also some conduct that does not and allows consideration of a limited set of circumstances within the record of conviction. This article collects and discusses those cases that have applied either approach to determine convicted aliens' removability under 8 U.S.C.A. § 1227(a)(2)(B)(i) for violating laws relating to controlled substances."

"The Federal Immigration and Nationality Act (INA), in section 212(a)(2)(A)(i)(II), 8 U.S.C.A. § 1182(a)(2)(A)(i)(II), declares inadmissible "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21)." Pursuant to this statute, aliens who have been convicted of or admitted to any conduct "relating to" violations of laws involving controlled substances, as listed in the Federal Controlled Substances Act, 21 U.S.C.A. §§ 802 et seq., have been rendered inadmissible, and such relief as expungements and pardons have not removed the negative immigration consequences of their offenses. In Coronado v. Holder, 759 F.3d 977, 93 A.L.R. Fed. 2d 581 (9th Cir. 2014), for example, the Ninth Circuit Court of Appeals held that possession of methamphetamine constituted a removable offense even though the convicting statute also included substances that were not listed on the federal controlled substance schedules. This annotation collects and discusses all cases construing and applying this provision and its predecessor."

"The United States Sentencing Guidelines prescribe a two-level increase in the offense level of a defendant who used sophisticated means in committing his or her criminal theft or fraud offense. In U.S. v. Oyegoke-Eniola, 734 F.3d 1262, 94 A.L.R. Fed. 2d 671 (10th Cir. 2013), appeal dismissed, 2014 WL 6980976 (10th Cir. 2014), petition for certiorari filed (U.S. Jan. 21, 2015), the court vacated and remanded a sentence imposed on a defendant convicted of making a false statement on an immigration document, holding that the district court had abused its discretion in imposing the "sophisticated means" enhancement, as it had failed to make the necessary findings in support of the enhancement. This annotation collects and analyzes the federal cases construing and applying the "sophisticated means" enhancement."

"This Note argues that courts should not allow generalized and unclear advice to meet the standard for effective assistance of counsel when the immigration consequences are actually clear-cut, because doing so undercuts the purpose of the Padilla decision and is unhelpful to noncitizen clients."

"This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla."

"This Article suggests that Padilla has implicitly challenged this model with potentially powerful consequences. Padilla cannot be squared with the historical, formalist relegation of deportation to the realm of civil collateral consequences in which there is no clear constitutional right to counsel. This Article thus seeks to elucidate how the Padilla opinion might model a viable constitutional reconciliation between the Court’s historical formalism and its current realism."

"This article unpacks Padilla and the jurisprudential convergence of criminal law and immigration law to develop a theoretical framework based on close readings of the Immigration and Nationality Act’s crime-based grounds of removal."

"This article focuses on Chaidez’s last argument regarding the application of certain types of new rules in postconviction proceedings, notwithstanding Teague. It argues for a “postconviction pipeline” in which new rules would apply. The pipeline includes any properly filed post conviction motion in state or federal court which involves an initial challenge to a criminal conviction."

"This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent about-face."

"This Note argues that state supreme courts should apply Padilla retroactively. Part I provides a brief overview of the immigration consequences
of criminal convictions and the challenges of interpreting immigration law’s treatment of criminal convictions. Part II reviews the case law context of
Padilla claims, including the Sixth Amendment right to effective assistance, the retroactivity standards for newly announced constitutional rules, and the
first decisions regarding the retroactivity of Padilla itself. Part III compares the first state law retroactivity rulings: Massachusetts’s and New Mexico’s holdings that Padilla applies retroactively, and South Dakota’s, Maryland’s and New York’s rulings that it does not. Part IV reviews a Padilla retroactivity case now pending in Connecticut. Finally, Part V argues that all states should abandon the federal retroactivity framework and apply Padilla retroactively."