When Counsel Provides Deportee with False Information Regarding Immigration Consequences

Randolph Wolf recently represented an individual that faced deportation from the United States as a result of two guilty pleas that he had entered years earlier. The individual explained to Mr. Wolf that, although he believed that he was innocent of the charges, he followed the advice of his attorney to plead guilty in order to avoid the possibility of any jail time. His attorney never informed him that his guilty pleas carried immigration consequences. Mr. Wolf submitted a Petition for Post-Conviction Relief on the individual’s behalf. He argued that the individual was provided ineffective assistance of counsel as defense counsel violated his affirmative duty, as set forth in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), to inform the individual of the immigration consequences of his guilty pleas. Relying on a recently issued decision by the New Jersey Supreme Court in State v. Gaitan, 209 N.J. 339 (2012), the prosecutor argued that the rule set forth in Padilla did not apply to cases that were decided before it. Since the individual pleaded guilty to both charges well before Padilla was decided, the prosecutor argued that the court should dismiss the individual’s petition. In response, Mr. Wolf pointed out that the individual’s counsel not only failed to affirmatively inform him of the immigration consequences of his guilty pleas in violation of Padilla, but he also provided the individual with false and misleading information about the immigration consequences of his guilty pleas in violation of State v. Nunez-Valdez, 200 N.J. 129 (2009). In support of his position, Mr.Wolf pointed out that question 17 on the plea form for both accusations asked:

17. Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?

In response to this question, the individual – with the advice of his counsel – circled “Not Applicable.” By doing so, Mr. Wolf argued, defense counsel provided the individual with false or misleading information regarding the immigration consequences of his guilty pleas.

The Court has not yet ruled on this case. In contrast to the New Jersey Supreme Court’s decision in Gaitan that Padilla does not apply to older cases, however, most state courts to decide the issue have held that that Padilla does apply to cases that were decided before it. The U.S. Supreme Court will resolve this split in Chaidez v. U.S., 655 F.3d 684 (7th Cir. 2011). Until then, individuals in New Jersey that pled guilty to charges before Padilla was decided (March 31, 2010) and who are now seeking post-conviction relief based on ineffective assistance of counsel will have to demonstrate – as Mr. Wolf did – that their lawyers somehow provided them with false or misleading information regarding the immigration consequences of their guilty pleas.