Encarnacion v. StateEncarnacion v. State
This case concerns the adequacy of an attorney‘s immigration advice to a legal permanent resident who entered a guilty plea to a burglary charge. The attorney advised his client that his plea “may” have an impact on his immigration status. However, the State concedes and we agree that the immigration consequences of the plea were clear — a conviction for burglary constitutes an aggravated felony and will almost certainly lead to deportation proceedings under the Immigration and Naturalization Act (“INA”). It follows that the attorney was deficient when he incorrectly advised his client that he “may” face deportation as a result of his plea.
Petitioner entered a guilty plea to a charge of burglary in the Superior Court of Gwinnett County on August 30, 2012. He was sentenced under Georgia‘s First Offender Act,
Petitioner filed an application for a certificate of probable cause to appeal which this Court granted, posing the following question: “Did the habeas court properly analyze the claim presented?” We answer this question negatively, reverse the habeas court, and remand with direction.
To prevail on a claim of ineffective assistance of counsel, petitioner must show both that his counsel‘s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)). With regard to immigration consequences, the United States Supreme Court held, in Padilla v. Kentucky, 559 U. S. 356 (130 SCt 1473, 176 LE2d 284) (2010), that the Sixth Amendment‘s guarantee of effective assistance of counsel protects a criminal defendant from erroneous advice about deportation, id. at 366, and that a defendant establishes Strickland‘s deficient performance prong by showing that counsel failed to accurately advise the defendant when the immigration consequences of a guilty plea “could be easily determined from reading the removal statute [
Included in the INA‘s definition of “aggravated felony” is “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.”
The mere fact that petitioner was given first offender treatment is of no import, because federal immigration law treats a guilty plea to an aggravated felony as a conviction even if the conviction is ultimately expunged.
The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable,”
We recognize that, except for death and taxes, one hundred percent certainty does not exist in this world and one can always imagine exceptional circumstances in which, despite the clear mandate of
An attorney‘s advice as to the likelihood of deportation must be based on realistic probabilities, not fanciful possibilities. Thus, we find that where, as here, the law is clear that deportation is mandatory and statutory discretionary relief is unavailable, an attorney has a duty to accurately advise his client of that fact. Padilla v. Kentucky, supra. It is not enough to say “maybe” when the correct advice is “almost certainly will.” Hernandez v. State, 61 S3d 1144, 1151 (Fla. 3d DCA 2011), aff‘d, 124 S3d 757 (Fla. 2012). See also United States v. Urias-Marrufo, 744 F3d 361, 369 (5th Cir. 2014) (because it is counsel‘s duty to warn noncitizen defendant of clearly defined immigration consequences, it is irrelevant that magistrate judge asked whether defendant understood there might be immigration consequences and that defendant and counsel discussed possible adverse consequences of pleading guilty); United States v. Ramiro, 548 Fed. Appx. 458 (9th Cir. 2013) (where immigration law demanded deportation, attorney misled defendant when he advised him that immigration judge would decide whether to deport him and that lower sentence might improve his chances to avoid deportation); Ebrahim v. LeConey, 2012 U.S. Dist. LEXIS 175432 (W.D. N.Y. 2012) (where alien was convicted of aggravated felony the deportation consequences were clear and counsel‘s advice that alien merely had a risk of being deported would not suffice under Padilla); United States v. Rodriguez, 2012 U.S. Dist. LEXIS 167131 (D.Mass. 2012) (where deportation was virtually certain consequence of guilty plea, attorney rendered ineffective assistance by suggesting that plea was defendant‘s best chance to fight deportation).
In light of Encarnacion‘s conviction for an aggravated felony, defense counsel had no reason to believe there was a realistic probability that his client would escape deportation. It follows that
In light of the foregoing, we remand this case to the habeas court to consider the second prong of petitioner‘s ineffective assistance claim: whether petitioner‘s counsel‘s deficient performance prejudiced his defense. To satisfy this prong in the guilty plea context, petitioner must “show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Smith v. State, supra, 287 Ga. at 396 (2) (b) (citing Hill v. Lockhart, 474 U. S. 52, 59 (106 SCt 366, 88 LE2d 203) (1985)).
Judgment reversed and case remanded with direction. All the Justices concur.