Immigration Consequences and the Effective Assistance of Counsel

by | Oct 2, 2025 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

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.

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
I had occasion to speak with Fred regarding one of my employees who was dealing with an extended revocation. Fred gave me several suggestions which I passed on along with his name and number. I think he used him and he is now back driving. Fred was very professional and responsive even though I wasn't a client.
Dave P
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto is compassionate! His forewarning his network about DUI checkpoints are vital to public interests! He does what it NEEDED by giving us advanced notifications about avoiding situations! Thank you Fred!
Joseph R
Google star 1Google star 2Google star 3Google star 4Google star 5
Mr. Sisto provides outstanding support and guidance, he is absolutely very quick to respond to your initial inquiry and stands by you throughout your legal circumstances. I highly recommend Mr. Sisto to assist you in your time of need! You will truly be thankful you used his expertise and services!
Ej W
Google star 1Google star 2Google star 3Google star 4Google star 5
Nice to know where to avoid,I drive a taxi and can save time if I know where they are because they tie up traffic.
John M
Google star 1Google star 2Google star 3Google star 4Google star 5
i have not needed the service of fred sisto but am grateful for the notices i receive
Bill P
Google star 1Google star 2Google star 3Google star 4Google star 5
Great Job! Enjoy getting the updates.
Ed R
Google star 1Google star 2Google star 3Google star 4Google star 5
Thanks for sharing this information.
Joe F
Google star 1Google star 2Google star 3Google star 4Google star 5
Frederick Sisto Law Office guided me through my legal needs, they were very responsive and professional and I would use certainly use them again
Ryan P
Google star 1Google star 2Google star 3Google star 4Google star 5
Spot on, 100%
Earl M
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto is an excellent attorney who works diligently and thoroughly to support, advise, and guide you through your legal difficulties. He is down-to-earth, advises you well, and his cost is comparable and well-worth it based on the service and expertise that he provides. Fred was able to get me the best possible outcome for my situation based on the possibilities and he was direct and honest with me throughout the process. John McDonnell
John M