On July 22, 2025, a 5-2 majority of the New Jersey Supreme Court decided the Ocean County case of State v. Juan Hernandez-Peralta. The principal issue under N.J.S.A. 2C:43-2 concerned whether counsel was ineffective for not informing the defendant of immigration consequences even though the defendant claimed to be a U.S. citizen.
Justice Wainer Apter wrote for the majority in relevant part: In sum, the information upon which the PCR court and Appellate Division relied — defendant’s birthplace outside of the United States, the information about his parents, and the fields left blank on the presentence report — are, in the context of this case, not clear indicia of non-citizenship. As all parties agree, evidence that a defendant had a “green card,” an Alien Registration Number or “A-Number,” a visa, a re-entry permit, or an Employment Authorization Card would all be clear indicia of non-citizenship. But no such evidence existed in this case. Defendant steadfastly maintained he was a U.S. citizen and never informed sentencing counsel that he had a green card. And while defendant did testify that he told the probation officer that he had a green card, no mention of it appeared on the presentence report.
Sentencing counsel reasonably accepted that defendant was a U.S. citizen based on his repeated assertions that he was. Neither the plea form, nor the presentence report, nor any other information provided to Wentworth by the time of sentencing clearly called that assertion into question. Moreover, Wentworth testified that she was not aware that defendant had previously told plea counsel and the court that he was born in New York. Therefore, in the circumstances of this case, sentencing counsel’s failure to do more than ask her client if he was a U.S. citizen does not constitute deficient performance under Strickland.
Our conclusion is bolstered by the fact that no court has found that sentencing counsel has a constitutional duty under Strickland or Padilla to independently verify or investigate a client’s citizenship status beyond asking the client if they are a citizen. See, e.g., Okeowa v. State, 337 So. 3d 767, 771 (Ala. Crim. App. 2021) (stating that Padilla creates a duty to advise when counsel “knows of his or her client’s citizenship status” but “does not create a separate duty for counsel to ask every client about his or her citizenship status”); State v. Sewell, 314 So. 3d 811, 814 (La. 2020) (concluding that Padilla does not “impose a duty on every defense attorney” to “inquire” about a client’s citizenship status because under Strickland, “there may be no obligation to inquire into immigration status where counsel did not know, and did not have reason to know, that defendant was a noncitizen”); Bobadilla v. State, 117 N.E.3d 1272, 1283 (Ind. 2019) (finding deficient performance because plea counsel assumed without asking that his client was a citizen, and marked “N/A” on the plea form’s Padilla warning, despite receiving a judicial document that listed his client’s birthplace as “Mexico” — and admonishing that “the best practice is to never assume a client’s citizenship status: always ask”); Najera v. State, 422 P.3d 661, 668-69 (Haw. Ct. App. 2018) (determining “that defense counsel who lacks information about a defendant’s citizenship status has the burden of asking the defendant whether he or she is a citizen,” but specifying that, “if the client informs or even misinforms defense counsel that he or she is a citizen, then defense counsel would be absolved of the responsibility of providing advice to the client regarding the deportation consequences of the client’s guilty or no contest plea”); Commonwealth v. Lavrinenko, 38 N.E.3d 278, 290 (Mass. 2015) (failure of a defense attorney to ask their client about citizenship and immigration status can “satisfy the deficient performance prong of the ineffective assistance analysis.”).
Under Strickland, counsel’s performance is evaluated by an objective standard of reasonableness. 466 U.S. at 688-89. As the above list of cases demonstrates, no court has held that a reasonable attorney must investigate a client’s citizenship status beyond asking the client if they are a citizen. We decline to do so now.
The issues in the case have since been addressed by modifications to the N.J. Superior Court plea forms. Defendants now must answer additional questions so that the parties are aware of immigration consequences regardless of what defendants claim regarding their citizenship.
Justice Noriega authored the dissent in which he was joined by Justice Fasciale. Justice Noriega practiced criminal defense and immigration as an attorney. His professional experience likely informed his dissent.
