The appellate panel continued in relevant part: In Padilla, the United States Supreme Court recognized “our law has enmeshed criminal convictions and the penalty of deportation.” 559 U.S. at 365-66. When the removal consequence flowing from a charge is clear, “an attorney must tell a client when removal is mandatory.” On the other hand, if “the law is not succinct and straightforward . . ., a criminal defense attorney need do no more than advise a noncitizen defendant that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S. at 369. Counsel’s failure to adhere to these requirements constitutes deficient representation, satisfying the first prong of the Strickland/Fritz standard. See Padilla, 559 U.S. at 369. Accordingly, “when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an IAC claim has been established.”
At the time defendant entered his guilty plea, the definition of “conviction” was established under the Immigration and Nationality Act (INA), which provides: The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. [8 U.S.C. § 1101(a)(48)(A) (emphasis added).]
It is a common misconception that the holdings in Padilla and Gaitan required that all criminal defense attorneys develop an effective understanding of immigration law. The key phrase is that such “expertise only applies when “when the removal consequence flowing from a charge is clear” (emphasis added).
