Jabr v. Holder, Past Persecution, 7th Circuit

For more than two years, members of the Palestinian Islamic Jihad (PIJ), an organization that violently opposes the existence of Israel, tried to recruit Jabr to join their group. Jabr resisted because he is a member of Fatah, a political party that, according to Jabr, is open to cooperation with Israel. PIJ members harassed him, beat him, and labeled him a traitor to their cause. After surviving a brutal attack in 2006, Jabr fled to the U.S. Within a year of arriving, Jabr sought asylum, withholding of removal, and relief under the Convention Against Torture. Jabr claimed that he feared returning to Palestine because the same individuals associated with the PIJ that hurt him before will attack him again. The immigration judge denied his application. The Board of Immigration Appeals affirmed. The Seventh Circuit granted review, finding that the IJ and BIA overlooked material evidence demonstrating that Jabr suffered past persecution on account of his political opinion.

Case # Caption Case Type Filed Document Author
12-2593 Feras Jabr v.
  Eric Holder, Jr.
agency 04/02/2013 Final
 Opinion
Williams
12-2593 Feras Jabr v. Eric Holder, Jr. agency 12/07/2012 oral argument

United States Court of Appeals

For the Seventh Circuit

No. 12-2593

FERAS ALI JABR, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. No. A094 998 344

ARGUED DECEMBER 7, 2012—DECIDED APRIL 2, 2013

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. For over two years, members of the Palestinian Islamic Jihad (“PIJ”), an organization that violently opposes the existence of Israel, tried to recruit Petitioner Feras Ali Jabr to join their group. Jabr resisted their efforts because he is a member of Fatah, a political party that, at least according to Jabr, is more open to cooperation with Israel. Jabr’s resistance left the PIJ frustrated and so its members harassed him, beat him, and labeled him a traitor to their cause. After surviving a brutal attack at the hands of the PIJ in 2006, Jabr fled the West Bank and headed for the United States. Within a year of arriving in the United States, Jabr filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. Jabr claimed that he feared returning to Palestine because the same individuals associated with the PIJ that hurt him before will attack him again. The immigration judge (“IJ”) denied his application, the Board of Immigration Appeals (“BIA” or the “Board”) affirmed the denial of relief, and Jabr petitioned this court for review. Because we find that the IJ and BIA overlooked material evidence demonstrating that Jabr suffered past persecution on account of his political opinion, we grant the petition for review and remand the case for further proceedings.

I. BACKGROUND

Petitioner Feras Ali Jabr, his wife, and two of his children are natives of Nablus, a city located in the West Bank. Before moving to the United States, Jabr worked in the maintenance department at Najah National University in Nablus. Unbeknownst to Jabr, the PIJ was using the university as a breeding ground for recruitment. The PIJ is an avowed terrorist organization that rejects any diplomatic efforts with Israel and has declared a mission to liberate Palestine through violence.1

1 The United States designated the PIJ a terrorist organization in 1997. See Holly Fletcher, Palestinian Islamic Jihad, Council on Foreign Relations (Apr. 10, 2008), http://www.cfr.org/israel/ palestinian-islamic-jihad/p15984 (last visited March 20, 2013).

Jabr is a member of Fatah, a party that supports a peaceful resolution with Israel and opposes the views of the PIJ.

Beginning in 2005, members of the PIJ began to target Jabr for recruitment. As a member of Fatah, Jabr refused to join their ranks because of their political beliefs. At first, the PIJ members called him a coward, a traitor, and an “Israeli agent” for refusing them, but they did not physically hurt him. Eventually, the PIJ’s violence escalated and over the course of the next two years, Jabr was harassed and threatened, gunshots were fired at his car, and at one point, he was beaten so severely that he was hospitalized for several days. Jabr fled to the United States soon thereafter, but that did not stop the PIJ’s harassment. Several of its members have frequently visited the home of Jabr’s mother in search of him. During one such visit, members of the PIJ slipped a letter under her door declaring that Jabr “will never escape the punishment of God and the anger of the people.” The letter further called “upon all of our people in the city of Nablus to reject and persecute this person.”

In January 2007, Jabr filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). His application was not granted and the government began removal proceedings against him. At the hearing before the IJ, both

Jabr and his mother (while on a visit to the United States) testified, and the IJ found their testimony credible and consistent. However, the IJ denied Jabr relief after concluding that he did not establish that he was persecuted on account of his political opinion, religion, or membership in a particular social group. In the IJ’s view, the record showed that the PIJ was only interested in recruiting as many members as possible. Jabr appealed the IJ’s decision to the BIA, and the Board dismissed his appeal. The Board agreed that, even assuming that Jabr had expressed a political opinion in support of Fatah, there was no evidence that the PIJ acted on the basis of that opinion when its members attacked him. This petition for review followed.

II. ANALYSIS

When, as here, the decision of the Board relies on the IJ’s decision, we review the IJ’s decision as supplemented by the Board’s own analysis. Juarez v. Holder, 599 F.3d 560, 564 (7th Cir. 2010). We must uphold the decision to deny Jabr relief if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir. 2008), and will reverse “only if the evidence presented by [Jabr] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

To qualify for asylum, an applicant must demonstrate that he is a “refugee,” meaning one “who is unable or unwilling to return to his country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To show that he was persecuted by the PIJ “on account of” his political opinion, membership in a particular social group, and/or religion as he claims, Jabr “must put forth direct or circumstantial evidence that the [PIJ] was motivated by these factors.” Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011); see id. (“But it is not necessary that the persecutor be motivated primarily on account of one of the grounds in the Act; an individual may qualify for asylum if his or her persecutors have more than one motive as long as one of the motives is specified in the Immigration and Nationality Act.”) (internal citation and quotation marks omitted). In certain cases, “the factual circumstances alone may constitute sufficient circumstantial evidence of a persecutor’s . . . motives.” Martinez-Buendia v. Holder, 616 F.3d 711, 715 (7th Cir. 2010) (citing Espinosa-Cortez v. Attorney General, 607 F.3d 101 (3d Cir. 2010) (quoting Canales-Vargas v. Gonzales, 441 F.3d 739, 744 (9th Cir. 2006)). This is one of those cases.

The issue here is whether Jabr sufficiently showed that the persecution he endured was on account of a statutorily protected ground. The IJ concluded that members of the PIJ were simply interested in recruiting Jabr and found nothing in the record to suggest that they beat him because of his political opinion or allegiance to the Fatah group. The Board similarly concluded that the men who attacked Jabr did not say anything that would indicate they beat him on account of either an express or imputed political opinion. However, significant evidence in the record contradicts this conclusion. Jabr testified that he repeatedly made it clear to the PIJ that he would not join the organization because he disagreed with its political and religious beliefs, and the IJ found him credible. Jabr also attached several documents to his application for asylum, including a personal statement, a statement from the secretary of the Fatah movement stating that Jabr is a member, and an ominous “Explanatory Statement” issued by the Islamic Jihad that was left under his mother’s door. The statement warns of “Rogue Sources of Discord” and reads as translated in the record:

We [c]onfirm that one’s behind the confusion in the region is a small fragmented deteriorating group, sold itself to an objective and private agenda, which is not concerned about the interest of any member of our people. We specify in this regard (Feras Ali Jabr), who is accused of being a source of disturbance to the National Security, especially in Nablus Region. He distorted the reputation [of] the Mujahideen (Resistance Fighters). He will never escape the punishment of God and the anger of the people in the short or long term. Therefore, he and his alike individuals involved with spreading rumors, whom known to us at the Intelligence and Preventive Units, has to take lessons of their alike predecessors through history. Indeed God is not unaware of their injustice and criminality. Neither [will] the people . . . forgive their sins when the time comes to try such suspects and traitors. We call upon all of our people in the city of Nablus to reject and persecute this person. Furthermore, we demand that his family be blockaded to avoid their harm to the region as a whole.

(And the wrongdoers will indeed know their future fate.)

Alquids Brigades, the military wing of the Islamic Jehad Movement

The Board found that Jabr’s claim that the PIJ attacked him because of his political opinion was mere “speculation” because there was “no direct or circumstantial evidence supporting this assertion.” But this letter shows otherwise. By specifically naming Jabr and his family, this letter creates an unmistakable inference that the PIJ explicitly targeted Jabr on account of his contrary political stance. He told its members he was politically opposed to the PIJ, they beat him, and then they vowed to seek revenge. The beating and sending the letter were not methods of recruitment, they were means of intimidation and punishment. As we explained in Martinez-Buendia, “[i]f political opposition is the reason an individual refuses to cooperate with a guerrilla group, and that individual is persecuted for his refusal to cooperate, logic dictates that the persecution is on account of the individual’s political opinion.” 616 F.3d at 718.

This case is factually distinguished from INS v. Elias-Zacarias, the seminal forced-recruitment case relied on by the IJ and the government. In Elias-Zacarias, the petitioner refused to join the Guatemalan guerrilla forces because he did not want to break the law and was afraid that the government would retaliate against him for joining. The Court held that the petitioner failed to establish that he had “a ‘well-founded fear’ that the guerrillas will persecute him because of [his] political opinion, rather than because of his refusal to fight with them.” 502 U.S. at 483 (emphasis omitted). But we have explained before that “Elias-Zacarias does not stand for the proposition that attempted recruitment by a guerrilla group will never constitute persecution on account of the asylum seeker’s political beliefs.” Martinez-Buendia, 616 F.3d at 716. Rather, we must “carefully consider the factual record of each case when determining whether the petitioner’s fear of future persecution due to his refusing recruitment attempts constitutes persecution on account of political beliefs.” Id.

The record in this case shows that the PIJ’s harassment of Jabr was not simply to increase its numbers. Members of the Islamic Jihad clearly considered Jabr’s Fatah affiliation to be in direct political opposition to theirs, warning that he would learn the “lessons of . . . alike predecessors through history,” as his traitorous “sins” could not be forgiven. The text of the PIJ’s letter, in conjunction with the harassment and beating that preceded it, provides the required link between his political beliefs and the motives of his attackers, and so we conclude that the circumstances of this case are closer to Martinez-Buendia than Elias-Zacarias. The petitioner in Martinez-Buendia claimed that members of the Revolutionary Armed Forces of Columbia (“FARC”) persecuted her on account of her anti-FARC political affiliation. Members of the FARC harassed her for years, kidnapped her sister, and held a gun to her head. The IJ in that case found the petitioner completely credible, but like here, denied relief on the ground that she had not established past persecution on account of her political affiliation. We reversed, concluding that “[u]nlike the record in Elias-Zacarias, the specific facts of this case make it clear that Martinez-Buendia politically opposed the FARC and that her political beliefs were the reason for her refusal to cooperate with the FARC.” 616 F.3d at 716. We noted that “[w]hile it may be unclear whether the FARC initially targeted her to overcome her political stance, the later persecution came as a result of her refusal to cooperate with the FARC to advance their political agenda.” Id. at 717 (emphasis added). The same reasoning applies here. We do not know why members of the PIJ initially targeted Jabr. But whatever their initial reason, we know that they eventually came to consider him a traitor and “source of disturbance to the National Security” after he resisted their efforts and revealed himself as a member of Fatah.

Like Martinez-Buendia, Jabr did not refuse to cooperate with the PIJ because joining them was against the law, see Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005), or because he was afraid of retaliation by the government, see Elias-Zacarias, 502 U.S. at 480. He refused because he was politically opposed to the PIJ, and he directly communicated that disagreement to them. See Martinez-Buendia, 616 F.3d at 718. The fact that Jabr did not hold a “notable” political position of leadership within the Fatah movement—an assertion put forth by the IJ—is of no moment. We have never held that a petitioner must occupy a leadership position within his political or social group in order to receive asylum protection. All the petitioner needs to show is that his persecutor’s conduct was on account of an express or imputed political opinion, which Jabr has clearly demonstrated here.2

III. CONCLUSION

For the foregoing reasons, we GRANT the petition for review, VACATE the order of removal, and REMAND for further proceedings consistent with this opinion.

2 Jabr also challenges the Board’s failure to mention why he did not qualify for asylum on account of his religion. Jabr describes himself as a “moderate Muslim” and claims that he told members of the PIJ that he did not agree with their “extreme Islamic beliefs.” Because we conclude that Jabr has shown that he was persecuted on account of his political opinion and has a legitimate fear of future persecution, we need not reach the question of whether he also qualifies for asylum on account of his religion.

4-2-13

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Convention Against Torture, material evidence, Palestinian Islamic Jihad (PIJ), past persecution, political asylum, withholding of removal | Leave a comment

CA7 Finds No Jurisdiction to Review Denial of Continuance

Moral, a citizen of Ecuador, was admitted to the U.S. in 1988 as an immigrant. The U.S. Department of Homeland Security began removal proceedings in 2011 because of his multiple criminal convictions, including unlawful use of a weapon and sexual abuse of a minor. The Immigration Judge granted five continuances, four of which allowed Moral to pursue state-court post-conviction proceedings seeking to set aside his guilty plea for sexual abuse of a minor occurring in 2002. After the state criminal court dismissed his petition, the IJ denied his request for another continuance and ordered removal. The BIA denied an appeal. The Seventh Circuit dismissed an appeal for lack of jurisdiction under the Immigration and Nationality Act, 8 U.S.C. 1252(a)(2)(C). The court reasoned that the provision, which is phrased more broadly than subsection (B), applies to denial of a continuance.

  • 12-1353 Mauricio G. Moral-Salazar v. Eric H. Holder, Jr. agency 11/14/2012 oral argument
  • 12-1353 Mauricio G. Moral-Salazar v. Eric H. Holder, Jr. agency 02/28/2013 Final Opinion Manion

United States Court of Appeals

For the Seventh Circuit

No. 12-1353

MAURICIO GUILLERMO MORAL-SALAZAR,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. No. A041 664 079

ARGUED NOVEMBER 14, 2012—DECIDED FEBRUARY 28, 2013

Before MANION, KANNE, and TINDER, Circuit Judges.

MANION, Circuit Judge. The U.S. Department of Homeland Security began removal proceedings against Mauricio Moral-Salazar (“Moral”) because of his multiple criminal convictions, including unlawful use of a weapon and sexual abuse of a minor. The Immigration Judge (“IJ”) granted five continuances, four of which allowed Moral to pursue state-court post-conviction proceedings seeking to set aside his guilty plea for sexual abuse of a minor occurring in 2002. After Moral informed the IJ that the state criminal court dismissed his petition, the IJ denied his request for another continuance and ordered his removal. Moral, through counsel, appealed the IJ’s decision to the Board, and the Board denied the appeal and denied Moral’s request for additional continuances.

Moral’s appeal of the Board’s order in this court presents another hurdle in the analysis of jurisdiction-stripping provisions of the Immigration and Nationality Act (“INA”) and their application to discretionary determinations such as the denial of a motion for continuance during removal proceedings. Recent cases construing the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B) have allowed review of procedural orders made discretionary by regulation, see Kucana v. Holder, 130 S. Ct. 827 (2010), even where a court has no jurisdiction to consider the merits of the alien’s removal, see Calma v. Holder, 663 F.3d 868 (7th Cir. 2011). But since Calma, we have yet to confront the scope of the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) and whether it, unlike § 1252(a)(2)(B), does not allow review of the denial of a motion for continuance. We conclude that § 1252(a)(2)(C), which is phrased more broadly than subsection (B), strips this court of jurisdiction here. Accordingly, we dismiss the petition for review.

I. Background

Moral is a citizen and native of Ecuador who was admitted to the United States in 1988 as an immigrant.

He was convicted of several crimes here, including criminal sexual abuse of a minor (2002), which is an aggravated felony, see 8 U.S.C. § 1101(a)(43)(A), and unlawful use of a weapon (1997). In 2011, the Department of Homeland Security charged Moral as removable due to his criminal activities.

In his removal proceedings before an immigration judge, Moral received a total of five continuances, four of which sought more time to allow him to pursue post-conviction relief in Illinois state court on his 2002 sex-abuse conviction. In state court Moral sought to withdraw his guilty plea and overturn that conviction on grounds that he was not informed of the immigration consequences of his plea in violation of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Overturning this conviction, he maintains, would affect his immigration proceedings because the conviction was an aggravated felony that precluded cancellation of removal under 8 U.S.C. § 1229b(a)(3). See 8 U.S.C. § 1101(a)(43)(A). Eventually, the state court dismissed his petition for post-conviction relief as untimely. Moral appealed that decision and filed a new action in state court, seeking equitable tolling of the statute of limitations for post-conviction relief.

After Moral’s initial petition for post-conviction relief was denied, the IJ, who had already granted five continuances, refused to grant any more and entered an order of removal. The IJ acknowledged Moral’s right to challenge his conviction in state court, but concluded that that “right had certain boundaries attached to it in the form of a deadline.” Because Moral “had the opportunity to exercise his right to attack the conviction and . . . obtained the ruling of the trial court in that regard,” the IJ, in his discretion, decided not to grant more continuances to permit Moral to pursue an appeal of the state-court judgment or his equitable-tolling suit.

Moral appealed to the Board of Immigration Appeals, which upheld the IJ’s decision. The Board noted that the IJ had discretion to allow a continuance as long as there was “good cause,” but determined that Moral’s ongoing efforts to pursue post-conviction relief did not constitute “good cause.” According to the Board, post-conviction challenges generally are speculative, and Moral’s hope of obtaining relief “after having his initial motion denied is particularly speculative.” The Board also noted that Moral’s challenges in state court were unlikely to be resolved in the foreseeable future. Finally, the Board observed, even if Moral were to successfully challenge his 2002 conviction, he had not made a prima facie showing that cancellation of removal would be appropriate in light of his other criminal convictions.

II. Discussion

Moral argues that the Board abused its discretion by denying his motion for a continuance to allow him to pursue his state-court appeal or his new suit seeking equitable tolling. Moral contends that the denial of a continuance renders toothless the Supreme Court’s decision in Padilla, 130 S. Ct. 1473, because without the continuance, he has no remedy for his public defender’s alleged failure to inform him of the immigration consequences of his 2002 guilty plea.

The government raises a threshold issue: whether we have jurisdiction to even consider the merits of Moral’s case. The government contends that the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C) makes the Board’s decisions in this case completely unreviewable. In support of this argument, the government points to the statutory language of subsection (C), which disallows review of “any final order of removal” against an alien who is removable by reason of having committed certain criminal offenses (including sexual abuse of a minor, an aggravated felony covered in § 1227(a)(2)(A)(iii)). The government also cites case law that interprets subsection (C) to preclude even the review of discretionary, procedural decisions such as the denial of a motion for continuance. Further, the government argues that the exception for constitutional or legal issues, see 8 U.S.C. § 1252(a)(2)(D), is construed narrowly and cannot salvage Moral’s primarily factual contention that the Board abused its discretion by denying a motion for continuance. On the jurisdictional issue, the government cites case law that predates Calma v. Holder, 663 F.3d 868 (7th Cir. 2011); it does not consider what, if any, impact Calma should have on this court’s interpretation of subsection (C).

In this case, we must determine whether our analysis in Calma, which focused exclusively on § 1252(a)(2)(B), applies to the jurisdictional bar set out in § 1252(a)(2)(C).

In Calma, we decided that we had jurisdiction to review the Board’s denial of a motion for continuance where an alien’s procedural challenge did not implicate the merits of an otherwise unreviewable removal order. Calma, 663 F.3d at 878. This case raises a similar question—whether we have jurisdiction to review an alien’s challenge to the denial of a motion for continuance—but requires us to consider a different statutory provision, subsection (C). As noted above, this provision deprives us of jurisdiction “to review any final order of removal” against an alien who has been convicted of certain enumerated crimes. 8 U.S.C. § 1252(a)(2)(C). Subsection (C) applies to Moral because he has been convicted of an aggravated felony—sexual abuse of a minor—see id. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(A), and illegal use of a firearm, see id. § 1227(a)(2)(C). (The sex-abuse conviction resulted from the guilty plea that Moral unsuccessfully challenged in state court.)

Recently the Supreme Court in Kucana v. Holder, 130 S. Ct. 827 (2010), and subsequently this court in Calma, 663 F.3d 868, concluded that the jurisdiction-stripping provisions found in 8 U.S.C. § 1252(a)(2)(B)(i) and (ii) did not apply to agency decisions made discretionary by regulation. Specifically, these included the denials of motions to reopen and motions for continuance. In Kucana the Supreme Court held that § 1252(a)(2)(B)(ii) does not bar judicial review of agency decisions made discretionary by regulation rather than by statute. See Kucana, 130 S. Ct. at 839-40. The Court interpreted subsection (B)(ii) to allow judicial review of a motion to reopen, which was made discretionary by regulation.

See Kucana, 130 S. Ct. at 840; 8 C.F.R. § 1003.2(a). Though Kucana’s holding extended only to subsection (B)(ii), some of the Court’s analysis suggested broader implications. In construing the statute, the Court relied on the “presumption favoring judicial review of administrative action.” Id. at 839. The Court also emphasized that decisions on a motion to reopen are adjunct, procedural rulings, which do not concern substantive relief, but instead ensure that aliens have a fair chance to present their claims. Id. at 837. But the Court declined to decide whether a discretionary procedural determination could be reviewed in cases where jurisdiction was otherwise lacking over the alien’s underlying claim for relief. Id. at 839 n.17.

In Calma, we extended Kucana’s holding to the other provision of subsection (B), 8 U.S.C. § 1252(a)(2)(B)(i). In Calma, petitioners challenged the denials of motions for continuance, but not the merits of the underlying denials of adjustment of status that are covered by the jurisdictional bar in subsection (B)(i). See Calma, 663 F.3d at 873. Motions for continuance, like the motions to reopen considered in Kucana, are made discretionary by regulation. See 8 C.F.R. § 1003.29. We noted that subsection (B)(i) prohibits review of the ultimate adjustment-of-status decision, but “says nothing about review of antecedent procedural decisions such as continuances.” Id. at 877. We concluded that we had jurisdiction to review the continuance motions, because they “do not implicate the merits of a final unreviewable order but instead merely defer the resolution of the merits so that the process as a whole can be completed with integrity.” Id. at 878.

Kucana and Calma dealt only with § 1252(a)(2)(B), but there are possible reasons to consider extending their holdings to subsection (C). It is true, for instance, that as in Calma, Moral’s motion for a continuance sought to “defer the resolution of the merits,” rather than overturn a final, unreviewable order. Calma, 663 F.3d at 878. Also, both Kucana and Calma recognize a general principle of statutory construction: the presumption favoring judicial review of administrative action. See Kucana, 130 S. Ct. at 839; Calma, 663 F.3d at 877. And in Calma, we were presented with and answered a question left open by Kucana1 and determined that a court may review a procedural decision in some circumstances even where it lacks jurisdiction to review the merits of a final, unreviewable order. Calma, 663 F.3d at 878; Kucana, 130 S. Ct. at 839 n.17.

But textual differences between subsection (B) and subsection (C) prevent us from extending Calma’s holding to subsection (C). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Kucana, 130 S. Ct. at 838 (internal quotation marks and brackets omitted). While subsection (B) denies jurisdiction to review certain agency decisions, Congress went further in drafting subsection (C), which unequivocally declares that “no court shall have jurisdiction to review any final order of removal” against an alien who is removable by reason of having committed certain criminal offenses, such as Moral’s aggravated felony and firearm violation. 8 U.S.C. § 1252(a)(2)(C) (emphasis added).2 We have interpreted the phrase “final order of removal” to encompass not only the actual removal order, but all decisions closely related to the proceeding. Torres-Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011). Thus an explicit jurisdictional bar on reviewing “any final order of removal” includes prior procedural orders like a motion for continuance. Subsection (B), on the other hand, is more narrowly worded, denying denying “jurisdiction to review” specified decisions of the Attorney General or his subordinates. 8 U.S.C. § 1252(a)(2)(B); see also Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (comparing subsection (B), “which forbids review of particular issues in a case” with subsection (C), which “provides that the ‘order of removal’ itself is unreviewable”); Ogunfuye v. Holder, 610 F.3d 303, 307 (5th Cir. 2010) (referring to subsection (C) as “broader” than subsection (B)).

1 As noted in Calma, the question left open in Kucana was “whether review of [decisions made discretionary by regulation] would be precluded if the court would lack jurisdiction over the alien’s underlying claim for relief.” Calma, 663 F.3d at 873. In Kucana, the Court concluded that the jurisdictional bar under 8 U.S.C. § 1252(a)(2)(B)(ii) did not apply because the Board’s decision (on a motion to reopen) was made discretionary by regulation, not by statute. See 130 S. Ct. at 839-40.

2 In Kucana, the Supreme Court emphasized that the scope of the INA’s jurisdictional bars must be defined by statute, not by regulation. “By defining the various jurisdictional bars by reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction. To read § 1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore that congressional design.” Kucana, 130 S. Ct. at 839-40. The scope of the jurisdictional bar under § 1252(a)(2)(C) is defined by statute, and its language denies us jurisdiction to review a discretionary denial of a continuance.

Thus, in light of the text of 8 U.S.C. § 1252(a)(2)(C), we decline to extend Calma and Kucana to removal orders where an alien has been convicted of a crime covered by the jurisdictional bar in subsection (C). Even procedural decisions made discretionary by regulation are therefore unreviewable (unless a legal or constitutional issue exists) in such cases. Our sister circuits have similarly concluded, after Kucana, that subsection (C) bars review of aggravated felons’ motions for continuance. See Waugh v. Holder, 642 F.3d 1279, 1284-85 (10th Cir. 2011); Ogunfuye, 610 F.3d at 307. 3

Nothing in this opinion, however, should be understood to preclude judicial review of a denial of the exceptional remedy of deferral of removal under the Convention Against Torture (“CAT”), which bars its signatories from returning a person to a country where he is likely to be tortured. See Wanjiru v. Holder, No. 11-3396, slip op. at 10-13, 2013 WL 135712, at *5-6 (7th Cir. Jan. 11, 2013); Issaq v. Holder, 617 F.3d 962, 969-70 (7th Cir. 2010). Aliens facing torture who are not eligible for withholding of removal under the CAT (certain criminals, for example) may petition for deferral of removal, which halts removal proceedings but may be revisited if circumstances change. See Wanjiru, No. 11-3396, slip op. at 11, 2013 WL 135712, at *5; 8 C.F.R. §§ 1208.16(c)(4); 1208.17. Deferral of removal under the CAT is a unique remedy that requires a distinct jurisdictional analysis. An erroneous denial of deferral of removal may result in a person being tortured or killed in his home country. And judicial review of decisions under the CAT—a U.N. treaty signed and ratified by the United States—helps ensure that this country is meeting its international obligations. See Wanjiru, No. 11-3396, slip op. at 13, 2013 WL 135712, at *6. These unusual considerations are not present in a case, like Moral’s, in which an alien who has committed crimes and seeks to avoid deportation petitions for review of a denial of a motion for continuance, a routine procedural motion.

3 Because this opinion establishes an analysis under 8 U.S.C. § 1252(a)(2)(C) that is distinct from the approach taken in Calma for petitions covered by § 1252(a)(2)(B), this opinion has been circulated to all active judges pursuant to Circuit Rule 40(e). No judge in regular active service voted to hear the case en banc.

Notwithstanding subsection (C)’s jurisdictional bar, we would have jurisdiction to review any legal and constitutional issues that Moral raises. See 8 U.S.C. § 1252(a)(2)(D). But Moral presents no legal or constitutional question here. Moral contends that the Board and IJ abused their discretion by denying him further continuances to pursue post-conviction relief under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Mere reference to a legal standard or a constitutional provision, however, does not convert a discretionary decision into a reviewable legal or constitutional question. See Zamora-Mallari v. Mukasey, 514 F.3d 679, 696 (7th Cir. 2008) (a petitioner may not create jurisdiction by “cloaking an argument in constitutional garb”) (internal quotation marks and ellipsis omitted); Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008). Though Moral cites the Supreme Court’s decision in Padilla, Moral’s constitutional challenge to his conviction was properly before the Illinois state courts; neither the agency nor this court may rule on its merits. See Ghani v. Holder, 557 F.3d 836, 839 (7th Cir. 2009) (“immigration proceedings are not a permissible venue for attacking the validity of a criminal conviction”).

III. Conclusion

Accordingly, we DISMISS Moral’s petition for want of jurisdiction.

2-28-13

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Jurisdiction, Motion for Continuance, Uncategorized | Tagged | Leave a comment

Vahora v. Holder, Asylum, violence between Hindus and Muslims 7th Cir.

Vahora is a Muslim citizen of India. In 2002, a train caught fire in Gujarat, India. Many Hindu pilgrims and activists were killed, and violence between Hindus and Muslims followed. Vahora testified that he and several Muslim friends were shot and that Hindu leaders continued to pursue him during the four years he remained in India before travelling to Guatemala, then to the U.S. He applied for asylum one year after arriving. An immigration judge ruled that, assuming the application was timely, and even accepting Vahora’s testimony as true, Vahora had not presented a cognizable claim of past persecution or shown that he had a well-founded fear of future persecution because he did not demonstrate that the Indian government was unable or unwilling to protect him. The Board of Immigration Appeals affirmed, finding that the persecution of which Vahora complains was not carried out by persons the government of India was unable or unwilling to control. The Seventh Circuit denied review, noting that Vahora never sought help from any authorities.

11-3189 Nazirmohammad I. Vahora v. Eric H. Holder, Jr. agency 05/31/2012 oral argument
11-3189 Nazirmohammad I. Vahora v.
Eric H. Holder, Jr.
agency 02/25/2013 Final
Opinion

United States Court of Appeals

For the Seventh Circuit

No. 11-3189

NAZIRMOHAMMAD I. VAHORA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. No. A 088-558-982

ARGUED MAY 31, 2012DECIDED FEBRUARY 25, 2013

Before MANION, KANNE, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Nazirmohammad I. Vahora is a citizen of India. He is also Muslim. In 2002, a train caught fire in Gujarat, India, where he lived. Many Hindu pilgrims and activists were killed, and violence between Hindus and Muslims followed. Vahora testified that he and several Muslim friends were shot in the days after the train fire by local Hindu religious or political leaders, and that these persons continued to pursue him throughout India in the four years he remained there. The Board of Immigration Appeals (“BIA”) affirmed the immigration judge’s conclusion that the persecution of which Vahora complains was not carried out by persons the government of India was unable or unwilling to control. While evidence in the record reflects that the government of India has taken steps to prosecute persons alleged to be responsible for the violence in the aftermath of the train burning, other than a conversation with a police officer whom he said visited him in the hospital and advised him to tell people that he was shot randomly during a police fight, Vahora never sought help from any authorities. Because substantial evidence supports the BIA’s determination that Vahora was not persecuted by persons the government of India is unable or unwilling to control, we deny the petition for review.

 

I. BACKGROUND

The immigration judge accepted Vahora’s testimony as true for the purposes of its decision, and the narrative that follows reflects Vahora’s account. On February 27, 2002, at least fifty-eight people were killed after a train caught fire near the Godhra train station in Gujarat, India. Most of those killed were Hindu pilgrims and activists. The tragedy led to increased tension between Hindu and Muslim groups in the region, as there was suspicion that a mob of Muslim individuals had attacked the train and was responsible for the fire. A period of violence and riots followed, resulting in the death of nearly 1,000 people.

Vahora is Muslim. He testified at a hearing before an immigration judge that on March 3, 2002, he and three of his friends were sitting at a teahouse in Gujarat when two Hindu religious and political leaders, accompanied by four or five police officers, approached Vahora and his friends. He said the two, whom he described in his statement as religious and political leaders, were Sandeep Patel, the head of a local unit of the Bharatiya Janata Party (“BJP”), a political party, and Ketan Mistry, the local leader of the Vishwa Hindu Parishad (“VHP”), a Hindu nationalist organization.

Vahora testified that the Hindu leaders threatened him and said the country was meant for Hindus and not for Muslims. They then blamed Vahora and his friends, who were also Muslim, for the burning of the train. Vahora said that after one friend denied that allegation, Patel took a gun from one of the policemen and fatally shot Vahora’s friend. Vahora stated that his other friend tried to resist, but that Patel shot and killed him as well. Vahora testified that Patel then shot him in the chest and left, thinking Vahora had died.

Vahora recounted that while he recovered in the hospital, a police officer named Mr. Bhatt came to interview him. Vahora said that after he told Bhatt what had happened, Bhatt told him to tell everyone that police were fighting at the time and that he just got caught by a bullet. Vahora said that he complied with Bhatt’s suggestion and stated in a report that he was struck by a “police bullet.”

Soon after Bhatt’s visit, Vahora stated that Patel came to the hospital, displayed a gun, warned him to maintain his story about being injured in a “police firing,” and threatened to kill him if he did not cooperate. Vahora said he feared for his life and so did not report the incident to the police. Vahora stated that he did not leave his home for approximately five months after he left the hospital because he was afraid. He said that when he did leave his home, he encountered Patel at a grocery market and Patel threatened him, asking him whether he wanted to survive. Scared for his safety, Vahora said he left Gujarat to stay with his sister in Mumbai in July 2002.

Vahora claimed that one year later, in August 2003, he ran into Mistry in Mumbai. Vahora stated that he gave Mistry false information when asked his current address, but that Mistry started visiting his home looking for him and even called him one night to tell him they were going to kill him. Vahora stated that two days later, the leaders, along with eight to ten boys, knocked him off his bike and hit him, and that he was only saved when local shopkeepers and taxi drivers rushed to assist him.

Vahora stated that he then moved to Delhi and began working at a hotel there in November 2003. Two years later, he said, Patel and some others came to the hotel’s front desk and asked for him. He said that when he saw one with a knife, he ran outside, and they assaulted him but ran away when the hotel owner came to the scene. Vahora said that he returned to his hometown because he missed his wife and brothers, saw the leaders when he and his wife were out for a walk, and was again saved when shopkeepers came to his rescue.

Vahora testified that he left for Guatemala a few days later and arrived there in February 2006. A person there helped him travel through Mexico and then into the United States, where he said he arrived on June 29, 2006. He filed his application for asylum on June 28, 2007. A hearing took place before an immigration judge. The immigration judge gave Vahora “the benefit of the doubt” and concluded that he had timely applied for asylum within one year of his entry into the United States. Although the immigration judge stated that Vahora set forth a “somewhat improbable, or at least implausible” story that two local Hindu leaders continued to pursue him even after he left Gujarat, the immigration judge declined to make an adverse credibility finding. Instead, the immigration judge ruled that even accepting Vahora’s testimony as true, Vahora had not presented a cognizable claim of past persecution or shown that he had a well-founded fear of future persecution because he did not demonstrate that the Indian government was unable or unwilling to protect him. On appeal, the Board of Immigration Appeals affirmed, also ruling that Vahora failed to show that he suffered past persecution or that he had a well-founded fear of future persecution by a group that the government is unable or unwilling to control. Vahora now petitions this court for review.

II. ANALYSIS

The Board of Immigration Appeals issued its own opinion rather than simply adopting the immigration judge’s decision, and we will uphold the BIA’s determination so long as it is supported by substantial evidence. Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011). Under this standard, we let the agency’s determination stand “if it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Raghunathan v. Holder, 604 F.3d 371, 376 (7th Cir. 2010) (citations omitted).

To receive asylum, Vahora bears the burden of proving that he is a “refugee” within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42). 8 C.F.R. § 1208.13(a). A “refugee” under the INA is a person who is unable or unwilling to return to his home country, “and is unable or unwilling to avail himself or herself of the protection of [ ] that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). When a petitioner establishes that he was the victim of past persecution, a rebuttable presumption that he has a well-founded fear of persecution in the future results. 8 C.F.R. § 208.13(b)(1); Zhou Ji Ni, 635 F.3d at 1018.

To constitute persecution, the harm suffered must be sufficiently severe. The conduct in question must rise above the level of mere harassment; the conduct must “threaten death, imprisonment, or the infliction of substantial harm or suffering.” Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996). Vahora testified that he was shot, which is unquestionably sufficiently severe. The government also does not contest that Vahora was shot “on account of” his religion.

That does not end the inquiry, however. A petitioner will not receive asylum if he could relocate to another part of his country of nationality and it would be reasonable under the circumstances to expect him to do so. 8 C.F.R. § 208.13(b)(2)(ii); Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008). In addition, and most relevant here, “persecution” under the INA does not encompass purely private actions. Jonaitiene v. Holder, 660 F.3d 267, 270 (7th Cir. 2011). The INA does not afford relief, for example, to “those who are unfortunate enough to be victims of ordinary crime or generalized chaos.” Escobar v. Holder, 657 F.3d 537, 543 (7th Cir. 2011). Rather, to receive protection under the statute, the persecution must be inflicted by the government, or by private actors whom the government is unable or unwilling to control. Jonaitiene, 660 F.3d at 270. It was on this basis that the immigration judge, and later the BIA, denied Vahora’s asylum request.

Vahora maintains that the BIA wrongly concluded that he did not establish that he was persecuted, or had a well-founded fear of future persecution, from persons that India’s government is unable or unwilling to control. Vahora predicates his claim of persecution on the actions of Patel and Mistry. He did not suggest in his testimony that Patel or Mistry worked for India’s government, nor did he present any evidence that they did. He instead described them as local leaders of a political party and a Hindu nationalist organization. Because Vahora alleges persecution by private actors, to receive asylum he must show that India’s government “either condones [the persecution] or is helpless to prevent it.” Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005).

The BIA’s conclusion that Vahora failed to show that the government of India was unable or unwilling to protect him is supported by substantial evidence. The State Department’s Country Report on Human Rights Practices for 2008 reflects that the government of India has taken steps to punish the persons responsible for the violence in Gujarat in 2002, including local leaders of the BJP and VHP and local police officers. But Vahora did not seek assistance from the authorities and never filed any sort of report of what he now says happened to him.

Vahora made no attempt to seek protection from the federal or state government during the four years he remained in India prior to his February 7, 2006 departure, even after he relocated to different cities throughout India in an attempt to stay away from local BJP and VHP leaders from his hometown. He also did not complain to anyone in authority about his assailants after the incidents in Mumbai and Delhi. Although Vahora speculated that reporting to authorities would have been futile, substantial evidence supports the BIA’s determination otherwise. Cf. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (stating an applicant need not have reported the persecution if doing so would have been futile or subjected him to further abuse). The BIA pointed to the 2008 Country Report which indicates that the Indian government was continuing efforts to find those persons responsible for violence in 2002 following the train burning at Godhra, that police officers were being tried for their alleged roles in the violence, that political leaders had been arrested in connection with the riots, and that a Special Investigation Team had been instituted to look into the cases relating to the train burning and resulting communal riots.

More specifically, the Report states that the Supreme Court had followed the recommendations of a Central Review Committee and directed in 2004 that 134 persons charged under a different statute for the 2002 Gujarat train burning be charged under the Penal Code. It also recounted that in 2003 the Court had instituted a Special Investigation Team to reinvestigate the Gujarat train cases, and that within six months had arrested eleven people allegedly connected to the 2002 train burning and resulting communal riots. Significantly, among those arrested were local leaders of the BJP and VHP. The Country Report also notes that 41 police officers were being tried for their alleged roles in the violence, another fact relevant to Vahora’s case to the extent he is suggesting that police officers present at the scene of his shooting are pertinent to his claim.

The Country Report further states that the Supreme Court was continuing its efforts to find those responsible for the violence following the train burning and that the Court had asked Gujarat police to review the closure of numerous cases without investigation, though the police concluded that a majority could not be reinvestigated due to lack of witnesses. It also noted that the National Human Rights Commission and the National Commission for Minorities, two government entities, had intervened in several high-profile cases, including the 2002 anti-Muslim violence in Gujarat. Although many persons responsible for the 2002 violence still have not been brought to justice, the Country Report reflects that the Indian government has taken steps to punish offenders and that it neither condones the persecution Vahora fears nor is powerless to prevent it. And although we have cautioned about overreliance on State Department reports, this is not a case where the immigration court blindly relied on such reports while ignoring other evidence in the record. Cf. Gomes v. Gonzales, 473 F.3d 746, 756 (7th Cir. 2007).

The BIA was also not persuaded by the conversation Vahora claims he had with a police officer in his hospital room soon after the shooting. Vahora testified that while recovering in the hospital, an officer came to see him and advised him not to tell the truth about who had shot him and instead to say that he had been shot during a random police firing. Vahora contends that this officer’s failure to protect him demonstrates that the Indian government was unable or unwilling to protect him. Other than this conversation with a local police officer, however, Vahora never attempted to obtain help from authorities in the four years between the shooting incident and his departure from India, even after he relocated to different states in India and even though he said that the threats continued.

Although police apathy can indicate a government’s unwillingness or inability to protect an applicant, the BIA reasonably determined that the single conversation with a non-supervisory police officer in the hospital did not mean that the government was unable or unwilling to protect Vahora. In contrast, for example, in Guchshenkov v. Ashcroft, 366 F.3d 554, 557-58 (7th Cir. 2004), a petitioner complained to police after he was beaten the night of his wedding by persons who told him he should not have married someone from a different nationality. When he went to the police, they responded with indifference. After he was beaten a third time and suffered a lacerated liver, he went to the police station seven times but did not receive help and was told a year later that his case had been lost from the archive and that the police were overloaded with other cases. Id. at 556.

We also found evidence that a government was unable to protect a petitioner in Hor, 421 F.3d at 502, a case the BIA noted in its decision in Vahora’s case. The applicant in Hor sought help from the Algerian military but was told it could not protect him. He then sought help from the courts but received only a decision recommending that he be cautious and keep a low profile. We found that to be evidence that the government of Algeria was incapable of protecting the applicant. See id.; see also Pramatarov v. Gonzales, 454 F.3d 764, 766 (7th Cir. 2006) (“There is some evidence of governmental complicity, however, in the reaction of military officers to Pramatarov’s complaints about being beaten and humiliated because of his ethnicity and in the refusal of the police to take action after he and his wife were beaten outside the restaurant.”).

We certainly do not suggest that a person must seek and be denied assistance seven times to receive asylum. But Vahora had never sought and been refused police assistance nor had he ever made a report to the police or government authorities of what he now claims happened to him. Cf. Ingmantoro v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008) (denying petition where no evidence presented suggesting that police refused to respond to filed reports and noting fact that police did not prevent harm on one occasion does not compel a finding that they were unable or unwilling to prevent it). And the Country Report in the record suggests that the government is not unwilling or unable to take steps to address the persecution of which Vahora complains when it is notified.

Moreover, we agree with the government that Vahora’s testimony undermines his claim that the Indian government was unable or unwilling to control his assailants. He testified that Patel and Mistry were pursuing him because they feared he would implicate them in the March 3, 2002 shooting, including to the Special Investigation Team set up by the government to investigate the violence after the train burning. Vahora also wrote in his written statement that they threatened to harm him for revealing their connection to the shootings. But this motive for seeking to silence Vahora suggests that Patel and Mistry indeed feared facing consequences from the government for their crime. In other words, Vahora’s assertion that Patel and Mistry were after him to avoid being implicated in the shooting belies his argument that the government of India was not willing or able to hold Patel and Mistry accountable or protect him from persecution. After reviewing the record, we conclude that substantial evidence supports the BIA’s conclusion to deny Vahora asylum.

Vahora also sought withholding of removal. Because that standard is more stringent than the standard for asylum, an applicant who does not establish eligibility for asylum necessarily cannot meet the higher standard for withholding of removal. Bueso-Avila v. Holder, 663 F.3d 934, 939 (7th Cir. 2011). This request therefore fails as well.

Finally, Vahora challenges the BIA’s denial of his motion to reopen, a decision we review for an abuse of discretion. See Moosa v. Holder, 644 F.3d 380, 384 (7th Cir. 2011). A motion to reopen proceedings will not be granted unless the “evidence sought to be offered is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 C.F.R. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(1); Moosa, 644 F.3d at 384. Here, the only new evidence Vahora offered was a Wikipedia article on Gujarat and a copy of the State Department’s 2004 International Religious Freedom Report. The 2004 report was not new evidence, as the 2008 International Religious Freedom Report was already in the record. And the Wikipedia article was undated, so Vahora failed to show it contained new information. The BIA did not abuse its discretion when it denied the motion to reopen.

III. CONCLUSION

The petition for review is DENIED.

2-25-13 

 

Posted in 7th Circuit, 7th Circuit Cases- Aliens, applied for asylum one year after arriving, Asylum, past persecution, violence between Hindus and Muslims, well-founded fear of future persecution | Leave a comment

Provisional Waiver I-601A Applicants: The National Visa Center Process

About the Provisional Unlawful Presence Waiver

On January 2nd, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens present in the United States, who are in the process of seeking immigrant visas with the Department of State to become lawful U.S. permanent residents, may apply and be approved for provisional unlawful presence waivers before departing the United States to attend their immigrant visa interviews. USCIS will begin accepting provisional unlawful presence waiver, Form I-601A applications on March 4th, 2013.

The National Visa Center (NVC) Process – Frequently Asked Questions (FAQs)

If you have applied/are applying for the I-601A provisional waiver, listed below is important information regarding the National Visa Center pre-processing of your immigrant case and your interview at the U.S. embassy or consulate you designated.

If the Department of State has already scheduled my immigrant visa appointment, how do I determine if I am eligible to submit the I-601A to USCIS?

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the Form I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

How do I get a copy of my immigrant visa (IV) application processing fee payment receipt?

You must submit proof of payment of your IV fee with your I-601A provisional waiver application to USCIS, attaching a copy of the receipt. Follow the instructions below to obtain a fee receipt copy:

If the Immigrant Visa Application Fee was: Then do the following:
Paid Online: If you paid the IV fee online through the Consular Electronic Application Center (CEAC) Return to the CEAC site and print a copy of your receipt
Paid by Mail: If you paid the fee by mail to the NVC You must request a copy of your receipt from NVC. To request a copy of your IV fee payment receipt, send an email to NVCI601A@state.gov with the subject line: “Fee Payment Receipt Request” and also include your NVC case number.

Will NVC schedule my IV interview appointment even if I submit an I-601A provisional waiver to USCIS?

No, after you submit your I-601A Provisional Unlawful Presence Waiver Application, USCIS will notify the National Visa Center (NVC) that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application.

What should I do once USCIS approves my I-601A provisional unlawful presence waiver?

Once USCIS approves your Form I-601A, it will inform NVC of its decision. If NVC has received all required forms and documents for your immigrant visa case, NVC will schedule your immigrant visa interview at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the United States to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

What will happen during the visa interview at the U.S. embassy or consulate if the consular officer determines that I have other visa ineligibility?

If the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked. Learn more on the USCIS Website, provisional waiver.

Para solicitantes de Exención Provisional I-601A- El proceso en el Centro Nacional de Visas y Usted – Preguntas Frecuentes (FAQ’s)  Translation – Español (.pdf)
Sobre la Exención Provisional de Presencia IlegalEn enero 3 de 2013, El departamento de Servicios de Inmigración y Ciudadanía de los Estados Unidos (USCIS) anunció que ciertos familiares inmediatos de ciudadanos estadounidenses presentes en los Estados Unidos, que están en el proceso de búsqueda de visas de inmigrante con el Departamento de Estado para convertirse en residentes legales permanentes de los Estados Unidos, puede solicitar y ser aprobados para exenciones provisionales de presencia ilegal antes de salir de los Estados Unidos para asistir a la entrevista de visa de inmigrante. Favor de revisar el Comunicado de Prensa e Instrucciones en el sitio Web de USCIS para mayor información sobre quiénes son elegibles e instrucciones. USCIS comenzará a aceptar exenciones provisionales de presencia ilegal, Forma I- 601A en marzo 4, 2013.Proceso en el Centro Nacional de Visas (NVC) –Preguntas Frecuentes (FAQ’s)Si usted ha solicitado/está solicitando una exención provisional I-601A, a continuación encontrará información importante respecto al pre-procesamiento de su caso de visa de inmigrante del Centro Nacional de Visas así como de su entrevista en la Embajada o Consulado de Estados Unidos que usted escogió.

Si el Departamento de Estado me ha programado una cita de visa de inmigrante, ¿cómo puedo determinar si soy elegible para solicitar el I-601A a USCIS?

Los solicitantes con una carta para cita de entrevista del Centro Nacional de Visas con fecha anterior a enero 3 del 2013 no son elegibles para solicitar el I-601A. Únicamente los solicitantes programados por el Centro Nacional de Visas para una entrevista inicial a partir de enero 3 del 2013 son elegibles para solicitar un I-601A. “Programado” significa la fecha en la que el NVC tomo la acción de programar el caso – no la fecha para la cita de entrevista de visa. El NVC envía la carta de cita de entrevista fechada con el día que programa el caso, por lo que deberá revisar la carta de notificación de cita para saber cuando el NVC tomo dicha acción.

¿Cómo puedo obtener una copia del recibo de pago del trámite de mi visa de inmigrante (IV)?

Usted debe enviar a USCIS evidencia de pago de su solicitud de visa de inmigrante (IV) junto con su exención provisional Forma I-601A, incluyendo una copia del recibo. Sigua las siguientes instrucciones para obtener una copia gratis del recibo:

Si la cuota de Solicitud de Visa de Inmigrante fue:

  1. Pagada en línea: Si usted pagó la cuota de visa de inmigrante en línea a través del Centro Electrónico de Solicitud Consular(CEAC)  Entonces haga lo siguiente: Regrese al sitio Web del CEAC e imprima una copia de su recibo
  2. Pagada por correo: Si usted pagó la cuota al NVC por corre: Entonces haga lo siguiente. Usted debe pedir una copia de su recibo del NVC. Para pedir una copia de su recibo de pago de visa de inmigrante, envíe un correo electrónico a NVCI601A@state.gov indicando en el asunto (“subject”) lo siguiente: “Fee Payment Receipt Request”(Solicitud de Recibo de Pago). También incluir su número de caso del NVC).

¿El NVC programará mi entrevista de visa de inmigrante aún si solicito la exención provisional I-601A a USCIS?

No, luego de que realice su Solicitud de Exención Provisional de Presencia Ilegal I-601A, USCIS le notificará al Centro Nacional de Visas (NVC) que han recibido su solicitud de exención provisional y el NVC no programará su cita de visa de inmigrante hasta que USCIS le informe al NVC de la decisión tomada respecto a su solicitud de I-601A.

¿Qué puedo hacer una vez que USCIS apruebe mi Exención Provisional de Presencia Ilegal I-601A?

Una vez que USCIS ha aprobado su forma de I-601A le notificará al NVC de su decisión. Si el NVC ha recibido todas las formas y documentos requeridos para su caso de visa de inmigrante, el NVC le programará su entrevista de visa en la Embajada o Consulado de Estados Unidos correspondiente y le notificará de su fecha de cita. Usted deberá salir de Estados Unidos para asistir a su entrevista de visa de inmigrante al lugar designado. Si usted no sale de Estados Unidos y no se presenta a su entrevista de visa de inmigrante, su exención provisional de presencia ilegal no tendrá efecto y la aprobación probablemente ya no sea válida.

¿Qué pasará durante la entrevista para la visa en la embajada o consulado de EE.UU. si el oficial consular determina que tengo otras inelegibilidades de visa? Si el oficial consular determina en su entrevista de visa de inmigrante que tiene inelegibilidades (otros motivos de inadmisibilidad o que no sean elegibles para la visa) más allá de la presencia ilegal, la aprobación de la exención provisional de USCIS es automáticamente revocada. Más información en el sitio Web de USCIS,  provisional waiver .

Posted in I-601A, Provisional Waivers | Tagged | Leave a comment

Padilla v. Kentucky does not apply retroactively to cases already final on direct review

In Chaidez v. United States, the Court held that Padilla v. Kentucky, in which the Court held that the Sixth Amendment requires defense attorneys to inform criminal defendants of the deportation risks of guilty pleas, does not apply retroactively to cases already final on direct review.

Roselva Chaidez entered the United States from Mexico in 1971 and has been a lawful, permanent resident of the United States since 1977.  In connection with an automobile insurance fraud scam in which she had received less than two thousand dollars, she – on advice of her attorney – had pleaded guilty to two counts of mail fraud and was sentenced to probation and to pay restitution.  Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.  In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her.  Through a writ of coram nobis, Chaidez sought to set aside her conviction.  While the petition was pending, the Court issued its decision in Padilla v. Kentucky.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.  On Wednesday the Supreme Court agreed. In 2003, the government charged Chaidez with mail fraud for her involvement in a false claim for $26,000 against an insurance company.  Because Chaidez was not a U.S. citizen and the amount of damages exceeded $10,000, the mail-fraud charges constituted an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Moreover, the federal statute allows the deportation of a permanent resident (noncitizen) who is convicted of an aggravated felony. On December 3, 2003, Chaidez pled guilty to the charges on her lawyer’s advice.

In 2007, Chaidez unsuccessfully applied for U.S. citizenship and, in 2009, immigration authorities sought to deport her. On January 25, 2010, Chaidez filed a motion for a writ of coram nobis, which allows a defendant to challenge a conviction when the defendant is not in custody and therefore cannot rely on the writ of habeas corpus. Chaidez argued that her lawyer violated her Sixth Amendment right to effective assistance of counsel by failing to inform her that pleading guilty might result in her deportation under the IIRIRA.

Meanwhile, on March 31, 2010, before the district court ruled on Chaidez’s motion, the United States Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that criminal defense attorneys must inform their clients of any clear deportation consequences that might result from pleading guilty. The district court judge held that the Supreme Court in Padilla did not announce a new rule of law but merely applied a preexisting rule. Therefore, the district court judge applied Padilla and vacated Chaidez’s conviction, holding that Chaidez received ineffective assistance of counsel.

On August 23, 2011, the Seventh Circuit Court of Appeals reversed the district court’s decision and reinstated Chaidez’s conviction. Contrary to the district court’s reasoning, Judge Joel Flaum held that Padilla created a new rule that did not apply retroactively to Chaidez’s conviction. Accordingly, Judge Flaum remanded the case to the district court to consider Chaidez’s motion.

After the Seventh Circuit Court of Appeals denied Chaidez’s petition for a rehearing, Chaidez appealed to the U.S. Supreme Court. On April 30, 2012, the Supreme Court granted certiorari on the question of whether Padilla applies to individuals who were convicted of crimes before the Supreme Court decided Padilla.

Kagan said the court declined to rule on whether precedents on retroactivity applied to challenges to federal, as opposed to state, convictions, and in particular ineffective assistance of counsel claims in federal cases.  In the last footnote of the opinion, the majority declined to address two arguments that the Court deemed were not properly raised in the lower courts – “that Teague’s bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when he makes a claim of ineffective assistance.”  These issues may well reappear before the Supreme Court in the near future.

Chaidez has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens.  Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

Issue

Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla? Answer: No.

The rule of Teague v. Lane restricts the retroactive application of new rules after the judgment has become final.  Seven Justices of this fractured court  agree with the Teague rule that protects the finality of criminal judgments.  Padilla‘s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been-in fact, was not-“apparent to all reasonable jurists” prior to a decision. Padilla thus announced a “new rule.”

Chaidez is the latest application of the Teague v. Lane retroactivity test.  By most accounts, Padilla represented a significant change in the law.  Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule.  A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence.  The Court understood this to be a run-of-the mill application of the retroactivity principles of Teague v. Lane, with the junior Justice assigned the decision.  Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

U.S. Supreme Court


ROZELVA CHAIDEZ PETITIONER v. United States


11-820
February 20, 2013

CERTIORARI TO THE UNITED STATES COURT 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 conviction 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 immigration 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 deportation 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 declared a new rule and should not apply in a challenge to a final conviction.

Held: Padilla does not apply retroactively to cases already final on direct 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 review. A “case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S., at 301. And a holding is not so dictated unless 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 ineffective 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 considered 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, Padilla 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 unanimously concluded that the Sixth Amendment does not require attorneys 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 altered 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 misrepresent 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 reasonably 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, reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule of Strickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”

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 principles 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 became 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,” subjecting her to mandatory removal from this country. See 8 U.S.C. §§1101(a)(43)(M)(i) , 1227(a)(2)(A)(iii) . But according 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 District 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 attorneys must inform non-citizen clients of the risks of deportation 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 collateral 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 BL 252301], 2010 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 conviction. “Before Padilla,” the Seventh Circuit reasoned, “the [Supreme] Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to [a] client’s criminal prosecution,” including the risks of deportation. 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 established 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 procedure decisions turn on whether they are novel. When we announce a “new rule,” a person whose conviction is already 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 differently,” 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 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 indicated by “prevailing professional norms,” and the defendant 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 suggesting 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 professionally incompetent.

But Padilla did something more. Before deciding if failing to provide such advice “fell below an objective standard 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 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 misinformed 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 violate the Sixth Amendment . The Court of Appeals, we noted, had held “that parole eligibility is a collateral rather 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” advice 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 concluded that the Sixth Amendment does not require attorneys to inform their clients of a conviction’s collateral consequences, including deportation. All 10 federal appellate 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 violation 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 deportation, which are “not a part of or enmeshed in the criminal proceeding,” does not fall within the Amendment’s scope. United States v. George, 869 F. 2d 333 , 337 ( CA7 1989). Appellate courts in almost 30 States agreed. 8

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 consequences 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 recognized rules of American law.” Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 706 (2002). 10

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 consequence 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 Amendment 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: Notwithstanding 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 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 reasonableness 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 approach-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 consequence could violate the Sixth Amendment would not have been-in fact, was not-“apparent to all reasonable jurists” 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 different 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 “‘reasonableness under prevailing professional norms’ “: The decision 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 attorneys affirmatively misled their clients about the deportation consequences of guilty pleas. 12 The only question left for Padilla to resolve, Chaidez claims, was whether professional 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 Strickland analysis. And more: It did an especially easy Strickland 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 “competent defense counsel” would inform his client about a guilty plea’s deportation consequences. Id., at 323, n. 50. 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 collateral 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 special “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

Predictably, then, the case law 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 federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent 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 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 collateral 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 following St. Cyr, not a single state or lower federal court considering a lawyer’s failure to provide deportation advice 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.

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 prosecutions,” an accused enjoys the right “to have the Assistance of Counsel for his defence.” By its terms, this right extends “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 consequences of a guilty plea. Id., at ___ (slip op., at 2-3) (SCALIA, J., dissenting). Today, the Court finds that Padilla 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, therefore, believe that the Teague analysis is unnecessary and thus concur only in the judgment.

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 meaning 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 nothing 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 concluding 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 beginning 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 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 definition 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 Strickland resulted in a new rule. 1

Significantly, we have previously found that applications 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 violates “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., 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 responsibility to conduct a background investigation in a capital case. Rather, we explained that in referring to the ABA Standards 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 Solicitor 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 Strickland 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 expectations of the legal community: ‘[t]he proper measure of attorney performance remains reasonableness under prevailing 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 federal 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 Attorney 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 immigration 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 generally 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, “authorities of every stripe-including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications-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 marks omitted).

We drew further support for our conclusion that professional standards required advice about deportation consequences 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 Standards 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 naturally from these earlier observations about changes in immigration law and the accompanying evolution of professional 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 Padilla and after, counsel was obligated to follow the relevant 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 consequence 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 lawyer’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 distinction 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 consequence.” Id., at ___ (slip op., at 8-9). Indeed, “[o]ur law ha[d] enmeshed criminal convictions and the penalty of deportation for nearly a century,” and we had “long recognized” 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. Without this revision to our recent decisional history, the majority’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 development of professional standards over time. St. Cyr noted the importance of advising clients about immigration consequences was of recent vintage, indeed more recent 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 understood by lower courts to present “the most difficult” penalty to classify as either a collateral or direct consequence. 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 immigration 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 constitute 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 F. 2d 1534 , 1540-1541 ( CA11 1985). 5 State-court decisions 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 immigration 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 below the [ABA]’s ethical standard for criminal defense attorneys 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 responsibility” that encompasses affirmative misrepresentations 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 meaningfully alter the state of the law in the lower courts before 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 incomplete. 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 deportation resulted in ineffective assistance. The distinction between omissions and affirmative misrepresentations on which these lower court cases depended cannot be reconciled 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 affirmative 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 misstatements. 559 U.S., at ___ (slip op., at 12-13) (citing Strickland, 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 misrepresentation hardly establishes the rationality of the distinction. 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 distinction 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 ‘objective,’ and the mere existence of conflicting authority does 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. Collins, 506 U.S. 461 , 506 (1993) (Souter, J., dissenting).

Where the application of Strickland was straightforward, 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 paradoxical conclusion that by declining to apply a collateral-consequence doctrine the Court had never adopted, Padilla 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 Padilla similarly reflected the impression that it was a significant 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 momentous 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 examination 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 defendants of the fundamental protection of Strickland, which requires that lawyers comply with professional norms with respect to any advice they provide to clients.

* * *

Accordingly, I would reverse the judgment of the Seventh Circuit and hold that Padilla applies retroactively on collateral review to convictions that became final before its announcement. With respect, I dissent.


fn

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.

fn

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).

fn

3

Teague stated two exceptions: “[W]atershed rules of criminal procedure” 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.

fn

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 .

fn

5

We have never attempted to delineate the world of “collateral consequences,” 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 registration, disqualification from public benefits, and disfranchisement. See id ., at ___ (ALITO, J., concurring in judgment) (slip op., at 2-3) (listing other examples).

fn

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.

fn

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, [173 F.3D 846], 1999 WL 164951 , *2 ( CA2, Mar. 22, 1999); Ogunbase v. United States, [924 F.2D 1059], 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).

fn

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 , 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).

fn

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 .

fn

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, could not do so.

fn

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 described 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.

fn

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).

fn

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 consequences” and “stated very clearly that it found the distinction irrelevant” 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 United States. See 559 U.S., at ___ (slip op., at 7); supra, at 9.

fn

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, [173 F.3D 846], 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)).

fn

15

The dissent claims the opposite, averring that lower court “decisions show nothing more than that the underlying professional norms had not yet evolved to require attorneys to provide advice about deportation 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 because 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 instructed 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.

fn

16

Chaidez makes two back-up arguments in her merits briefs-that Teague‘s bar on retroactivity does not apply when a petitioner challenges 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 questioned 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 considered 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. Wilkinson, 544 U.S. 709 , 718 , n. 7 (2005).

fn

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 investigate a defendant’s background for the purposes of mitigation evidence in a capital case); Hill v. Lockhart, 474 U.S. 52 (1985) (failure to provide effective assistance during plea negotiations).

fn

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.

fn

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), Commentary, p. 71 (App. Draft 1968)). Following the sea change in immigration law, however, the professional norms had become so established and universally recognized that the measure of constitutionally adequate performance now included giving such advice in the form Padilla recognized. See 559 U.S., at ___ (slip op., at 10).

fn

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 quotation 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”).

fn

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”).

fn

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 misrepresentation 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).

fn

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.

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