People v. Hoare, 2018 IL App (2d) 160727 (January). Episode 474 (Duration 12:36)
Improper immigration advice is back on the table in a messy way after Lee v. U.S.
This is a post conviction petition alleging improper immigration advice.
Defendant, who counsel knew was a Belize national and not a United States citizen, was charged with possession of cocaine.
Defendant told counsel that a federal official had informed him that a conviction would mean deportation.
Counsel himself discussed the matter with an immigration attorney, but defendant was not present at the discussion. Between taking the case and appearing at the plea hearing, counsel did not tell defendant that a guilty plea and 410 probation would be a conviction under the Immigration Act or that they would result in his deportation.
Counsel told defendant that a guilty plea and 410 probation “could result in adverse consequences” for his immigration status. Counsel also told defendant that a guilty plea with the successful completion of 410 probation would not be a conviction under Illinois law.
Based on the foregoing, defendant contends that, under Padilla, counsel’s performance was objectively unreasonable.
Defendant reasons that counsel’s general and inconclusive advice that the prospective guilty plea “could” result in “adverse consequences” was insufficient to convey the harsh reality that entering the plea would leave him defenseless against deportation.
Padilla v. Kentucky
Defendant relies on Padilla’s statement:
“When the law is not succinct and straightforward ***, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear ***, the duty to give correct advice is equally clear.”
Padilla, 559 U.S. at 369.
Conviction Under The Immigration Act
Under the plain language of the Immigration Act, a “conviction” of that offense subjected him to deportation with no recourse other than the forbearance or neglect of federal authorities. And, under the plain language of the Immigration Act, as held by a federal appellate court, a “conviction” included a guilty plea and 410 probation.
Put differently, were defendant convicted of the offense, either by a plea or after a trial, he would be legally defenseless against deportation.
Section 1227(a)(2)(B)(i) of the Immigration Act states plainly that a “conviction” of possessing cocaine (and almost any other drug offense) makes a defendant “deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (2012).
And, although section 1101(a)(48)(A) is not as simple or straightforward as section 1227(a)(2)(B)(i), it should have been clear to counsel that 410 probation was a “form of *** restraint on [defendant’s] liberty.” 8 U.S.C. § 1101(a)(48)(A) (2012).
Moreover, to the extent that this language required construction, the Seventh Circuit had provided it in Gill, under circumstances that fit defendant’s situation, leaving no plausible doubt that, by pleading guilty in return for 410 probation, defendant would be deportable without recourse.
Thus, as in Padilla, the deportation consequence was “truly clear.” Padilla, 559 U.S. at 369.
Measured by this standard, defendant’s petition stated the gist of a meritorious allegation that counsel performed deficiently by failing to inform him that a guilty plea to the charge of cocaine possession, even with 410 probation, would make him deportable with no opportunity for relief, save the neglect or indifference of federal authorities.
The law, especially in view of Gill, made it plain that, by accepting the plea agreement, defendant was signing away any legal right or basis to avoid deportation. Counsel was obligated to give him more than the tentative and vague advice that his plea “could result” in “adverse immigration consequences.”
Counsel was obligated to tell defendant the concrete and easily ascertained truth: that the plea would strip defendant of any defense to deportation. Counsel did not affirmatively mislead defendant, but, under Padilla, that was not needed to establish professionally unreasonable performance.
When the consequences of a guilty plea are clear, certain, and succinct, trial counsel cannot satisfy his obligation with advice that is vague and equivocal.
More specifically, if it is clear that deportation is legally automatic, as it was in Padilla and Torres and is here, the attorney fails Strickland’s performance standard by advising his client only that a guilty plea might affect his immigration status and that he should consult an immigration attorney.
Did The Admonishment Cure The Error?
Moreover, we cannot agree with the trial court here that the admonishments that defendant received made up for any deficiency in counsel’s representation.
The proceedings continued:
THE COURT: For all of these, though, do you understand that for the drug case, this 410 probation as we’re calling it, is a special kind of probation. A conviction is not being entered for Illinois law purposes today. If you successfully complete the probation, then there won’t be a conviction for that. There will be on the traffic offense. But regardless, these dispositions could result in the federal government trying to remove or deport you from the United States or prevent you from obtaining naturalized United States citizenship. Nobody here, not the lawyers, not me, nobody, can make you any promises or representations as to what the federal government might do. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Grimes [(defendant’s attorney)], have you and your client had an opportunity to look into the immigration consequences?
MR. GRIMES: Yes, Judge. We believe that this is an appropriate disposition taking that into account.
THE COURT: Okay. And you had a chance to speak with immigration?
MR. GRIMES: An attorney.
THE COURT: You spoke to an immigration attorney?
MR. GRIMES: Yes.
THE COURT: Okay. Is that correct, sir?
THE DEFENDANT: Yes, sir.”
The court did not advise defendant any more specifically or clearly than did counsel. Indeed, by conveying that “nobody” could make defendant any “promises” about the immigration consequences of his plea, the court’s admonishments were false, insofar as counsel was required to definitively articulate these consequences.
Thus, based on Padilla as binding, and Torres, which is factually indistinguishable from this case, as persuasive, we hold that defendant’s petition, taken as true and construed liberally, states the gist of a meritorious claim that counsel performed unreasonably under the first prong of Strickland.
Defendant contends that here the law was succinct and straightforward, making the deportation consequence of a guilty plea clear: he could not avoid deportation. Therefore, he reasons, counsel’s advice that defendant “could” be subject to “adverse immigration consequences” was precisely what Padilla implies is deficient performance in a case such as this one. We agree
We conclude that defendant’s petition stated the gist of the first half of a meritorious claim of ineffective assistance of counsel—deficient performance.
People v. Carranza-Lamas
We are aware that there is authority from this court that might be taken to hold otherwise. See People v. Carranza-Lamas, 2015 IL App (2d) 140862, ¶¶ 45-47.
In Carranza-Lamas, the defendant, per an agreement, pleaded guilty to unlawful possession of cocaine and received two years of 410 probation. Before accepting the plea, the trial court admonished him that a conviction of his offense “may have the consequence of deportation, denial of naturalization or exclusion of admission to the United States if you are not a citizen of the United States.”
Defendant files a petition and alleged that the defendant’s trial attorney had been ineffective for misadvising him that a guilty plea and 410 probation would not be a conviction for immigration purposes. The trial court found that the defendant had not proved prejudice under Strickland.
The court explained that unlike the defendant in Padilla, the defendant had already been subject to deportation and involved in deportation proceedings; thus, even before being charged, he had known that he could be deported. We reasoned first (and primarily) that “researching [section 1101(a)(48)(A) and Gill] leads to the conclusion that section 410 probation is considered a conviction for immigration purposes, but it is not as clear as the statute at issue in Padilla.”
We noted second (and secondarily) that, in the defendant’s particular circumstances, the attorney had to confront a separate and much more complicated issue—whether the defendant’s conviction would restrict the availability of discretionary postdeportation relief if he married a United States citizen.
This issue involved the interpretation of at least one additional and separate statute, which was “even less clear on its face” than section 1101(a)(48)(A) and thus was not subject to Padilla’s high standard for a case in which the law is “ ‘succinct and straightforward.’ ” Id. (quoting Padilla, 559 U.S. at 369); see 8 U.S.C. § 1252(a)(2)(C) (2006).
Therefore, we held that the attorney’s performance had not been deficient under the first prong of Strickland, and we affirmed the judgment.
The primary reason that we distinguished Padilla does potentially apply. However, to the extent that Carranza-Lamas does militate against defendant here, we decline to follow it.
In Carranza-Lamas, we distinguished Padilla on the following basis. In Padilla, and cases to which the Court plainly intended its opinion to apply, the defendant’s attorney needed to concern himself only with section 1227(a)(2)(B)(i), which made a cocaine conviction automatically deportable—and this section was succinct and straightforward. But, in CarranzaLamas, the defendant’s attorney had to inform himself of (1) section 1227(a)(2)(B)(i), which made a cocaine conviction deportable, and (2) section 1101(a)(48)(A), which made 410 probation a “conviction” under section 1227(a)(2)(B)(i)—and this section (even after Gill) was “not as clear as the statute at issue in Padilla.”1 Carranza-Lamas, 2015 IL App (2d) 140862, ¶ 47.
We must acknowledge that the foregoing reasoning is simply not persuasive.
Although the legal situation in Carranza-Lamas was not as simple as the one in Padilla, it was as clear.
In Padilla, as we noted in the preceding paragraph, the trial attorney had to take one step, which was straightforward. In Carranza-Lamas, the trial attorney had to take two steps—the same one as had the attorney in Padilla, followed by a second one that had not been present in Padilla. The second step was straightforward too, and it led to an unambiguous conclusion.
The second step was, as noted, to determine whether section 1101(a)(48)(A) made a guilty plea and section 410 probation a “conviction” under section 1227(a)(2)(B)(i). That was not a difficult matter for the trial attorney. First, section 1101(a)(48)(A), though not as short and concise as section 1227(a)(2)(B)(i), was still unambiguous. It made a guilty plea, combined with a “punishment, penalty, or restraint on the alien’s liberty” (8 U.S.C. § 1101(a)(48)(A) (2012)), a conviction for immigration purposes (8 U.S.C. § 1227(a)(2)(B)(i) (2012)).
Surely the attorney should have grasped that a term of probation, even one with the possibility of having the slate cleared later if the defendant met its conditions, was a punishment, penalty, or, at the very least, a restraint on the defendant’s liberty. Moreover, any doubt that the attorney entertained should have been cleared up by the eight-year-old opinion in Gill, which held that a guilty plea and 410 probation constitute a conviction under section 1227(a)(2)(B)(i).
Thus, we cannot endorse our prior statement that section 1101(a)(48)(A) was not as clear as section 1227(a)(2)(B)(i). Especially in light of Gill, the former statute was no less clear than the latter. The situation confronting counsel here was no more difficult than that confronting the trial attorney in Carranza-Lamas (and the one in Torres).
In Carranza-Lamas, the attorney had the plain language of section 1101(a)(48)(A) and the even plainer command of Gill to tell him that a guilty plea and 410 probation constituted a conviction that triggered section 1227(a)(2)(B)(i). Here, counsel had the plain language of section 1101(a)(48)(A), the even plainer command of Gill, and our acknowledgment in Carranza-Lamas that, under the statute and Gill, a guilty plea and 410 probation constituted a conviction that triggered section 1227(a)(2)(B)(i).
Lee v. United States
We turn to the second half— prejudice.
We hold that, under the Supreme Court’s recent decision in Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958 (2017), the allegations of defendant’s petition were minimally sufficient to satisfy Strickland’s prejudice prong.
In Lee SCOTUS said that theoretically, even had the defendant been fully aware that his chances of acquittal were remote, he might still have elected that distant chance over the certainty of deportation following a guilty plea. The Court cautioned that, to decide whether a defendant has proved prejudice, a court “should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.”
In the “unusual circumstances” before it, the Court held that the defendant had met his burden of proof.
Before entering the plea, the defendant had repeatedly asked his attorney whether there was any risk of deportation. At the guilty-plea hearing, the defendant had told the judge that the risk of deportation affected his decision, and he pleaded guilty only after receiving a misleading assurance from the attorney. At the hearing on the postconviction action, both the defendant and the attorney testified that the defendant would have gone to trial had he known the deportation consequences of pleading guilty.
The consequences of deportation would have been even more severe than usual, as the defendant had lived in the United States for nearly three decades without returning to South Korea or retaining any ties to the country, had established successful businesses here, and was the only family member in the United States who could care for his elderly parents, who were naturalized citizens.
Thus, it would not have been “irrational” for him to reject the absolute certainty of deportation that would result from a guilty plea and risk the near certainty of deportation that would result from going to trial, especially as the likelihood of a somewhat longer prison sentence in the event of a conviction was far less of a consideration for him.
Analysis Under Lee
Of course, as our review is de novo, the trial court’s reliance on pre-Lee law is of no consequence.
However, according to the petition, when he pleaded guilty, he had been married to a United States citizen for more than six years and had two small children who also lived in the United States. Both he and his wife were employed in the United States and had no desire to move elsewhere.
Although defendant’s petition gave little other detail about his ties to either the United States or his native Belize, it contained nothing to undermine the inference that the former connections were much stronger than the latter.
Thus, we cannot say that the petition’s allegation that defendant would have gone to trial, had he known that deportation was certain upon a plea of guilty, was frivolous or patently without merit. At this stage, no more was required.
Here, defendant does not confront a judgment entered after a hearing but need show only that, at the first stage of a postconviction proceeding, he has established the gist of a meritorious claim.
The “gist” standard is a low threshold.
Given these standards, we hold that the petition sufficiently stated the gist of a meritorious allegation of prejudice under Lee. Defendant did not articulate a plausible defense, much less actual innocence. We note that the trial court, having ruled before the Supreme Court issued its opinion in Lee, placed decisive weight on the absence of either a claim of actual innocence or a plausible defense.
For the foregoing reasons, we reverse the judgment of the circuit court of Lake County and we remand the cause for second-stage proceedings under the Act.
Episode 242 – People v. Valdez (judge’s immigration admonishments cured the lack of any immigration advice from trial counsel)
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Episode 111 – People v. Unzueta (possible immigration information from trial attorney brought up in the postconviction petition)
Episode 110 – People v. Guzman (failure of court to admonish defendant of immigration consequences does not necessarily lead to reversal)
Episode 436 – People v. Brown (defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case)