(C)

Example.  Defense counsel advised an amnesty applicant, who had lived in the U.S. and whose wife was also applying for amnesty, that his plea to a felony involving moral turpitude might result in his deportation, exclusion, or denial of naturalization, but that counsel would attempt to obtain a judicial recommendation against deportation.  Was this effective representation?

 

            No.  Counsel failed to advise him (a) that the felony would disqualify the client from obtaining permanent residence under the legalization program, (b) that the JRAD has been abolished since November 29, 1990, and (c) that the moral turpitude conviction would render the client inadmissible and therefore unable to immigrate through his wife when she obtained lawful permanent resident status. 

 

            Counsel failed to inform him that conviction of a misdemeanor and a sentence of six months or less would enable the client to take advantage of the petty offense exception [169] to the moral turpitude ground of inadmissability and remove all adverse immigration consequences from this conviction.  Counsel also failed to advise the client that a sentence of imposition of sentence suspended would not count as jail time under the immigration rules, although any time in custody imposed as a condition of probation would count, and failed to attempt to negotiate a sentence in which "imposition of sentence was suspended" or a sentence of less than six months was imposed.  These omissions violated the client's right to accurate immigration advice under Soriano, and required vacating the plea to permit the case to be handled with knowledge of the true immigration consequences of the plea.

[169] 8 U.S.C. § 1182 (a)(2)(A)(ii)(II).

EIGHT COURTS HOLD PADILLA RETROACTIVE
United States v. Obonaga, No. 07-CR-402, 2010 U.S. Dist. LEXIS 63872, 2010 WL 2629748 (E.D.N.Y. June 24, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625 (E.D.Cal. July 1, 2010); United States v. Chaidez, 730 F. Supp. 2d 896, 2010 WL 3184150 (N.D.Ill. 2010); People v. Bennett, 28 Misc. 3d 575, 903 N.Y.S.2d 696 (N.Y. Crim. Ct. May 26, 2010); People v. Garcia, 29 Misc. 3d 756, 907 N.Y.S.2d 398 (N.Y. Sup. Aug. 26, 2010); People v. Ramirez, 29 Misc. 3d 1201[A], 2010 NY Slip Op 51661[U], 2010 WL 3769208 [N.Y. Crim. Ct. 2010]; People v. Ortega, 29 Misc. 3d 1203[A], 2010 NY Slip Op 51679[U], 2010 WL 3786254 [N.Y. Crim. Ct. 2010].

Other

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
People v. Shokur, 205 Cal.App.4th 1398 (May 16, 2012) (giving of Penal Code 1016.5 advice, which defendant said he understood, precluded him from showing that he did not understand those consequences).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Ex Parte Gonzalez, No. CR-395-08-J(1), slip op. at 2 (Tex. Dist. Ct. Aug. 9, 2010) (where defense counsel advised her client that pleading guilty to a theft conviction may result in deportation, when in fact the theft conviction can readily be determined to be an aggravated felony by simply reading the plain and clear language of [INA 101(a)(43)(G),] 8 U.S.C. 1101(a)(43)(G), counsels failure to inform her client that the INA specifically commands removal for individuals convicted of an aggravated felony constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Rampal v. Rhode Island, 2010 WL 1836782 (R.I. Super. Ct. Apr. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Garcia, 907 N.Y.S.2d 398, 403 (N.Y. Sup. Ct. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).