Maryland Wins! Padilla is retroactive (but not for you who’ve been snoozing too long)

And so it goes – I’ve been waiting on this decision for a while. I lie, I thought the decision would come from a different case and not this one that I posted about last year in which the Maryland Court of Special Appeals (the intermediate appellate court), just days before Padilla and held, basically, the absolute opposite of Padilla.  Not to be outdone by those pesky Supremes who, occassionally get it right, the  Court of Special Appeals  issued a decision holding that  Padilla was not retroactive in Maryland. Ah shucks, time for the Court of Appeals to tell us what to do.  So we waited and waited and waited and wrote writs that said that Miller was on Appeal to the high court and we waited.

Last week, the Maryland Court of Appeals ruled in Denisyuk that Padilla is, in fact retroactive but only to the effective date of that terrible law – the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRAIRA as it’s known in cool kid immigration speak.)  What does this mean for you?  Well, if you plead guilty after April 1, 1997 you can use a Padilla based argument in your coram nobis application (assuming you are not on probation or parole or still incarcerated).  If your plead before then, you might be SOL.

That’s all folks.



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Posted in: Not Gulity No Way   |     |   2 Comments

2 Responses

  1. N oah - November 8, 2011

    Someone who pled guilty before IIRIRA may have relief under INA 212(c) after St. Cyr, though right?

    St. Cyr said that one who pled b4 change in law could continue to have previously available waiver. Not as good in that person has to wait knowing they are removable and that only relief would be uncertain discretion.

  2. Jonathan Ai - January 10, 2012

    Denisyuk is Maryland’s limitation on Paddila application retroactively is unconstitutional. IIRAIRA is a civil law, and what Denisyuk Court failed to see was that IIRAIRA was retroactive, ex post facto, which meant that after its enactment in 1997, many immigrants becomes FRESHLY deportable for OLD crimes that were NOT deportable before IIRAIRA. This is because criminal law is NOT ex post facto, but civil laws CAN BE. DENISYUK must be overtuned to the extent that the “limitation” must be removed. It is unconstutitional because, what the Court of Appeals is saying is that Non-Citizen’s have a right to raise 6th Amendment arguments (Padilla), so long as their conviction was after April 1, 1997. That’s ignorant. A constitutional right is not contingent upon time. It either applies or doesn’t.

    AS for the OLD response in November 2011, Denisyuk only refers to Strickland Claims (ineffective assistance of counsel), and does not affect relief under St. Cyr, and pre-IIRAIRA or transition period eligibility.

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