dissenting.
[¶ 24] I respectfully dissent on the same basis expressed in my dissent in State v. Ngo, 2007 ME 2, 912 A.2d 1224 (“Ngo I ”). As it was in Ngo I, it is our obligation to ensure that Ali has an opportunity to present the merits of his position. The majority risks denying Ali that opportunity by prohibiting him from presenting his claims pursuant to M.R.Crim. P. 1(c) without first determining whether any relief is available to him pursuant to 15 M.R.S. § 2124 (2010).
[¶ 25] Our decision in Ngo v. State suggests that post-conviction review is unavailable to Ali because, as a noncitizen awaiting deportation after serving a criminal sentence, he is not “restrained” for the purpose of section 2124(1). Ngo v. State, 2008 ME 71, ¶¶ 9, 11, 946 A.2d 424 (“Ngo II ”). Our holding in that case and similar cases was based on the view that deportation is a civil, collateral consequence of conviction. Id. ¶¶ 10-11; accord State v. Blakesley, 2010 ME 19, ¶¶ 26, 29, 989 A.2d 746; State v. Trott, 2004 ME 15, ¶ 9, 841 A.2d 789; see also Aldus v. State, 2000 ME 47, ¶ 18 n. 6, 748 A.2d 463. The United States Supreme Court’s conclusion in Padilla v. Kentucky that “deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes” calls the validity of our reasoning in these cases into question. - U.S. -, -, 130 *1026S.Ct. 1473, 1480, 176 L.Ed.2d 284 (2010). Ali now invites us to reconsider the issue by asking us to decide whether Padilla applies retroactively.
[¶ 26] Whether Padilla applies retroactively is a purely legal issue. The resolution of this issue does not require any evidentiary fact-finding or a certain procedural context. Other states have already addressed this issue, see e.g., Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892, 895-904 (2011), and Ali has given us the opportunity to do the same by properly presenting it to the Superior Court and adequately addressing it on appeal. Cf. Ngo I, 2007 ME 2, ¶ 7, 912 A.2d 1224. We have already declined to address underlying constitutional issues in Ngo II and Trott, and as Padilla recognizes, the post-conviction rights of noncitizen defendants is a quickly-evolving and topical area of law that deserves the Court’s attention sooner rather than later. See Padilla, 130 S.Ct. at 1478-80. For these reasons the Court can and should resolve this issue now before waiting for Ali to file a petition for post-conviction review. More importantly, we should address this issue before foreclosing the option of seeking relief through M.R.Crim. P. 1(c) because that will be Ali’s only possible source of recourse if the Court determines that Padilla is not retroactive.
[¶ 27] As it was in Ngo I, requiring Ali to address his constitutional claim through post-conviction review without first determining whether he will be able to do so unfairly obligates him to test our post-conviction review statute. It also risks putting Ali in the same situation as Loi Ngo: without any legal recourse, he will indefinitely remain in the unfortunate category of noncitizens who, for political reasons, are unlikely to be deported but who remain subject to deportation at any times.5 See Ngo II, 2008 ME 71, ¶ 3, 946 A.2d 424. I would avoid this result by holding that Padilla applies retroactively.
[¶ 28] To the extent that Padilla treats deportation as a penalty arising from a criminal judgment, it suggests that nonciti-zen petitioners subject to this penalty are entitled to review pursuant to section 2124. Only after confirming Padilla’s application to Ali could I concur with the majority that the proper vehicle for his constitutional claim is post-conviction review, because only then could I be sure that he would be able to pursue it. Otherwise, post-conviction review is unavailable to someone in Ali’s circumstances and M.R.Crim. P. 1(c) should apply.
. Counsel advised at oral argument that Ali has been ordered deported but conditionally released from detention, subject to supervision, because Somalia does not accept criminal deportees at this time. Ali can no longer become a lawful permanent resident, but is unlikely to be deported until circumstances change. As counsel noted, he "has no immigration status whatsoever.”