People v. Pagsisihan
170 N.E.3d 578
Ill. App. Ct.2020Background
- Andrei Pagsisihan, born in the Philippines, entered the U.S. in 1974 as a child and never departed; he was ordered deportable in 1989 after convictions for crimes involving moral turpitude, but the government never removed him and he later received work authorization in 1996.
- In 2010 Pagsisihan pled guilty to first-degree murder and attempted first-degree murder and was sentenced to 38 years for murder (concurrent with a 10-year attempted-murder term).
- After conviction he filed a postconviction petition claiming plea counsel never advised him that a murder conviction is an "aggravated felony" under federal immigration law and thus would trigger mandatory, expedited removal.
- The trial court dismissed the petition at the second stage, reasoning Pagsisihan already knew he was deportable and the plea did not create a new deportation risk.
- On appeal the First District reversed and remanded for an evidentiary hearing, finding (1) counsel had a duty to advise because the immigration consequence of a murder plea is clear, and (2) Pagsisihan made a substantial showing of prejudice under the Lee/Padilla line of cases given his factual allegations about two decades of mixed immigration signals and strong U.S. family ties.
Issues
| Issue | People (Plaintiff) Argument | Pagsisihan (Defendant) Argument | Held |
|---|---|---|---|
| Whether plea counsel had a duty to advise about immigration consequences of the murder plea | No deficient performance because defendant had been previously ordered removable and counsel could not discover why he had not been removed | Counsel failed to advise; murder is an aggravated felony and the immigration consequence is "succinct, clear, and explicit" | Duty existed; counsel’s failure to advise was deficient (State forfeited defense at appeal but court still addressed it) |
| Whether defendant suffered prejudice from lack of advice (would rejecting plea be rational) | No prejudice: defendant was already deportable and proceeding to trial would have been irrational given sentencing exposure | Prejudice shown: he would have rejected the plea to avoid certain deportation given strong U.S. ties and mixed prior immigration signals | Prejudice sufficiently alleged under Padilla/Lee; rejecting plea could be rational here—reversal for evidentiary hearing |
| Whether a prior deportation order precludes relief | Prior order means defendant always faced the same deportation risk, so no prejudice | Prior order does not categorically bar relief because decades of discretionary nonenforcement and other interactions could have led defendant to reasonably believe removal was not imminent | Court rejects a categorical "already ordered removable" bar; factual inquiry is required |
| Whether the petition should survive to an evidentiary hearing | Dismiss at second stage appropriate because record shows defendant knew of deportation risk | Facts in affidavit plausibly show defendant reasonably believed deportation was not imminent and would have refused the plea—credibility requires hearing | Reverse and remand for an evidentiary hearing to resolve credibility and factual disputes |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about clear immigration consequences of a plea)
- Lee v. United States, 137 S. Ct. 1958 (2017) (prejudice in plea context measured by whether rejecting plea would be "rational under the circumstances")
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for guilty-plea ineffective-assistance claims)
- People v. Brown, 2017 IL 121681 (Ill. 2017) (Illinois guidance on plea-stage prejudice analysis)
- People v. Valdez, 2016 IL 119860 (Ill. 2016) (Illinois precedent applying Padilla duty-to-inform framework)
- People v. Pendleton, 223 Ill. 2d 458 (Ill. 2006) (Post-Conviction Hearing Act procedures and second-stage standards)
- People v. Sanders, 2016 IL 118123 (Ill. 2016) (do not decide credibility at second stage)
- People v. Coleman, 183 Ill. 2d 366 (Ill. 1998) (accept well-pled allegations as true at second stage)