2020 IL App (1st) 181017 No. 1-18-1017 Opinion filed October 19, 2020
First Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 3599 ) ANDREI PAGSISIHAN, ) ) Honorable Defendant-Appellant. ) Diane Cannon, ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Walker and Justice Pierce concurred in the judgment and opinion.
OPINION
¶1 Andrei Pagsisihan pled guilty to one count of first degree murder for the shooting death of
Ricky Russo and one count of attempted first degree murder for the shooting of Johnny Vaughn.
The circuit court sentenced Pagsisihan to 38 years in prison. He filed a postconviction petition
alleging his counsel failed to advise him of the immigration consequences of his plea; namely, that
first degree murder constitutes an “aggravated felony” for the purposes of federal immigration law,
subjecting him to removal when he completes his sentence. See 8 U.S.C. § 1101(a)(43)(A) (2012);
8 U.S.C. § 1227(a)(2)(A)(iii) (2012). No. 1-18-1017
¶2 The trial court advanced Pagsisihan’s petition to the second stage and appointed counsel.
Documents attached to the petition show an immigration judge ordered him deportable in 1989.
But Pagsisihan argued that actions by immigration enforcement officials—including failure to ever
deport him and granting him work authorization for a year in 1996—led him to reasonably believe
that deportation was not imminent, if it was going to happen at all. According to Pagsisihan’s
affidavit, had he known that first degree murder was an “aggravated felony,” subjecting him to
mandatory expedited removal from the United States, he would not have pled guilty because of
his substantial family connections to this country and lack of any connection to the Philippines
where he was born.
¶3 We reverse and remand for an evidentiary hearing, guided by two principles. First, to
establish prejudice, Pagsisihan must only show that rejecting a guilty plea and proceeding to trial
would have been “ ‘rational under the circumstances.’ ” Lee v. United States, 582 U.S. ___, ___,
137 S. Ct. 1958, 1968 (2017) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
Significantly for our purposes, the United States Supreme Court said foregoing a guilty plea is
rational (or at least not irrational) when it means the difference between certain deportation and
almost certain deportation. Id. at ___, 137 S. Ct. at 1968-69. Accepting Pagsisihan’s allegations
as true, at the time he pled guilty he certainly knew that he could be deported, not necessarily that
he would be. The statutory certainty of the immigration consequences of a murder conviction
would have been a rational reason to reject a plea under those circumstances.
¶4 Second, we must pay heed to our standard of review. At this stage of postconviction
proceedings we accept all well-pled allegations as true and do not engage in any credibility
determinations. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). The outcome of Pagsisihan’s
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petition depends on whether a factfinder believes his assertions that, before his murder conviction,
he did not fear imminent deportation (even if it was a possibility) and would have risked a
steeper sentence to avoid a conviction that would have guaranteed his removal. That determination
is best made—indeed, can only be made—after an evidentiary hearing.
¶5 Background
¶6 Pagsisihan came to the United States from the Philippines in 1974, at the age of seven,
accompanied by his mother. His passport showed he had permission to remain in the United States
for three months, until March 19, 1975. He never left.
¶7 In 1985, Pagsisihan was convicted of vehicle theft and sentenced to two years’ probation
and 20 weekends of periodic imprisonment. In 1987, Pagsisihan was convicted of possession of a
stolen motor vehicle and sentenced to three years in prison. In 1989, the United States government
initiated removal proceedings, seeking to deport Pagsisihan on grounds that (i) he remained in the
country longer than he was authorized and (ii) both his 1985 and 1987 criminal convictions were
for crimes involving moral turpitude.
¶8 During his removal proceedings, Pagsisihan’s counsel reported, and the government did
not dispute, that his mother was a lawful temporary resident, his father was a lawful permanent
resident, his sister was a citizen, and he had a daughter who was a citizen. The only question before
the immigration court was the legal question of whether the offense of possession of a stolen motor
vehicle counted as a crime of moral turpitude. The immigration judge, while expressing sympathy
for Pagsisihan’s personal circumstances, found he had been convicted of two crimes involving
moral turpitude and “deportability ha[d] been established by clear, convincing, and unequivocal
evidence.” Pagsisihan was ordered “deported from the United States to the Philippines,” though
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the judge told him: “My order is not self-executing. There are provisions for…what’s the
expression…deferred action, if the respondent has the requisite extreme hardship.” The Board of
Immigration Appeals dismissed Pagsisihan’s appeal finding the immigration judge correctly found
both of his convictions to be crimes of moral turpitude.
¶9 The government, however, never removed Pagsisihan from the United States. In 1993,
according to a Cook County marriage license attached to his postconviction petition, he married
Nora Isis Gonzalez. Nothing in the record shows Gonzalez’s citizenship status or suggests a
dissolution of that marriage. Two years later Pagsisihan was released from the Illinois Department
of Corrections (IDOC) on an unrelated matter and then held “for a number of months in an
immigration facility.” Eventually, he was released under what he describes as “an ‘order of
supervision.’ ” The United States Department of Justice, through Immigration and Naturalization
Services, later granted him work authorization from July 1, 1996 to June 30, 1997.
¶ 10 Twelve years later, Pagsisihan was incarcerated in IDOC for reasons the record does not
reveal. On February 9, 2009, Immigration and Customs Enforcement (ICE) issued an immigration
detainer requiring IDOC to detain Pagsisihan and notify ICE at least 30 days before he was
released. Two boxes checked on the form show both that “investigation has been initiated to
determine whether [Pagsisihan] is subject to removal from the United States” and that “deportation
or removal from the United States has been ordered.”
¶ 11 About a year later, the State charged Pagsisihan with the offenses relevant to the
postconviction petition we consider now: first degree murder for the 1998 shooting death of Russo
and attempted first degree murder for the shooting of Vaughn. Pagsisihan agreed to plead guilty
to both offenses in exchange for a 38-year sentence for first degree murder to run concurrently
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with a 10-year sentence for attempted murder. The court accepted the State’s factual basis for the
plea and entered judgment.
¶ 12 Within 30 days of the entry of judgment, Pagsisihan filed a pro se motion to reduce his
sentence or, in the alternative, withdraw his plea. He made only one argument—that he was
unaware of the three-year term of mandatory supervised release (MSR) that he would be required
to complete after his prison sentence. He asked the trial court to reduce his sentence to 35 years so
that his total sentence would be 38 years after accounting for MSR. At a hearing, counsel withdrew
the motion on Pagsisihan’s behalf after a colloquy during which Pagsisihan informed the court that
no one had promised him anything in exchange for withdrawing the motion and he understood he
was forfeiting his right to file a similar motion in the future.
¶ 13 About two years later, Pagsisihan filed a pro se postconviction petition arguing, in part,
plea counsel’s ineffective assistance for failing to “investigate[ ] or ask[ ] defendant if he was a
United States citizen” and failing to “inform defendant of possible deportation due to pleading
guilty.” The court docketed the petition and appointed counsel. Besides the immigration
documents attached to the petition that established the facts recounted above, counsel attached
Pagsisihan’s affidavit. He averred that, to his knowledge, one of the reasons he was not deported
in 1989 was that “the Philippines would not issue [him] a travel document because a birth
certificate from the Philippines could not be located.” He admitted signing a form in 2009 from an
ICE officer alerting him that he was on “Investigation Status,” but he “assumed that [he] was not
subject to deportation because [he] had previously been released instead of being deported.”
¶ 14 As to counsel’s performance, Pagsisihan explained he told plea counsel he had dealt with
immigration officials in 1995 and asked counsel to contact the Philippines consulate on his behalf.
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Counsel never told him that a murder conviction would make him “subject to deportation” and
never discussed his immigration status with him. After he pled guilty he “became aware that [he]
was subject to deportation because of [his] conviction and learned that because of a murder
conviction being an ‘aggravated felony,’ it would be very hard to avoid getting deported.”
¶ 15 Pagsisihan’s affidavit said he would not have pled guilty had he known of the immigration
consequences and would have gone to trial and “sought an acquittal based on [his] innocence.” He
would have chosen trial because “[he] would have wanted to avoid deportation as [he] ha[s] lived
in the United States since [he] was a young child, do[es] not even remember ever being in the
Philippines, ha[s] children in the U.S. and other family here, and ha[s] no connection to life in the
Philippines and do[es] not know anyone there.”
¶ 16 The State filed a motion to dismiss arguing that plea counsel did not perform deficiently
because no amount of investigation by trial counsel could have determined why Pagsisihan had
not already been deported. The State argued, even if counsel had performed deficiently, no
prejudice existed because “at any moment, [Pagsisihan] was deportable” and discretionary
nonenforcement from the United States government did not erase his “deportable status.”
¶ 17 The circuit court granted the State’s motion to dismiss, finding in part: “all of these
examples of interactions with the immigration system are tantamount to notice of deportation risk.
The guilty plea did not create a new risk of deportation; he was already removable before the
proceedings in the matter commenced.” Pagsisihan filed a notice of appeal the same day.
¶ 18 Analysis
¶ 19 Pagsisihan argues he received ineffective assistance because plea counsel failed to advise
him about the immigration consequences of his plea—mandatory, expedited deportation—and
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counsel’s lack of advice prejudiced him because he would have rejected a plea and risked trial had
he known the immigration consequences were so dire. The State does not contest counsel’s
deficiency but argues Pagsisihan cannot show prejudice because (i) he was already ordered
removable from the country in the 1980s and (ii) proceeding to trial would have been irrational.
We agree with Pagsisihan, reverse the second-stage dismissal of his postconviction petition, and
remand for an evidentiary hearing consistent with the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2016)).
¶ 20 The Act provides a mechanism by which criminal defendants can challenge their
convictions based on alleged violations of constitutional rights. People v. Pendleton, 223 Ill. 2d
458, 471 (2006). To grant relief, the circuit court must find a substantial violation of a defendant’s
constitutional rights. Id. At the second stage, the court looks only to the pleadings and must take
all well-pled facts not rebutted by the record as true. Id. at 473. We must construe the petitioner’s
claims liberally; at this stage it is inappropriate to decide the credibility of the petitioner’s claims.
People v. Sanders, 2016 IL 118123, ¶¶ 31, 42. We review second-stage dismissals, like the one
here, de novo. Id. ¶ 31.
¶ 21 We review a claim of ineffective assistance of counsel under the familiar standard from
Strickland v. Washington, 466 U.S. 668 (1984), requiring a defendant to establish (i) counsel
provided deficient performance that (ii) resulted in prejudice to defendant. People v. Brown, 2017
IL 121681, ¶ 25. The constitution’s guarantee of the right to effective assistance of counsel applies
to both plea and trial proceedings. Id. To establish prejudice in the plea context a defendant must
show that “ ‘but for counsel’s errors, he [or she] would not have pleaded guilty and would have
insisted on going to trial.’ ” Id. ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Claims
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related to a defendant’s “understanding of the consequences of pleading guilty,” as opposed to
matters of trial strategy, do not require a showing that the defendant would have been “better off
going to trial” by raising actual innocence or a viable defense. (Internal quotation marks omitted.)
Id. ¶ 34 (discussing Lee, 582 U.S. at ___, 137 S. Ct. at 1965-66). Instead, a defendant need only
show that the decision to reject a plea and go to trial would be “ ‘rational under the
circumstances.’ ” Lee, 582 U.S. at ___, 137 S. Ct. at 1968 (quoting Padilla, 559 U.S. at 372).
¶ 22 Counsel’s Deficiency
¶ 23 Pagsisihan argues counsel performed deficiently because the immigration consequences of
his plea were clear and there was no reasonable basis to fail to advise him about those
consequences. The State does not offer an argument about deficiency in its brief and did not defend
counsel’s performance at oral argument. Ill. S. Ct. R. 341(h)(7), (i) (eff. May 25, 2018) (“Points
not argued are forfeited and shall not be raised *** on petition for rehearing.”). Despite the State’s
forfeiture, we briefly explain our agreement with Pagsisihan because the State moved to dismiss
based, in part, on lack of deficient performance by plea counsel. See People v. Perry, 2014 IL App
(1st) 122584, ¶ 20 (our responsibility to maintain “a sound and uniform body of precedent” can
outweigh considerations of forfeiture (internal quotation marks omitted)).
¶ 24 Plea counsel has a duty to inform a defendant of the immigration consequences of a plea.
People v. Valdez, 2016 IL 119860, ¶ 16 (citing Padilla, 559 U.S. at 367). Counsel performs
deficiently either by providing affirmative misadvice or by failing to advise at all. Id. Counsel’s
duty to advise sets in where immigration consequences are “succinct, clear, and explicit” based on
express language in the Immigration and Nationality Act (INA); otherwise, counsel need only give
advice of potential immigration consequences as a result of a plea. Id. ¶¶ 18-20.
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¶ 25 Pagsisihan argues, and we agree, that the immigration consequences of a conviction for
first degree murder are clear. The INA provides: “Any alien who is convicted of an aggravated
felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The INA
expressly defines murder as an aggravated felony. 8 U.S.C. § 1101(a)(43)(A) (2012). Removal on
the basis of the commission of an aggravated felony takes place on an expedited basis
under § 1228(a)(1), and the Attorney General has no discretion to provide relief from removal if
the alien is not lawfully present or is not a lawful permanent resident. 8 U.S.C. § 1228(b)(1),
(b)(2)(A)-(B), (b)(5) (2012). Based on the text of the INA, we find the immigration consequences
of Pagsisihan’s guilty plea to be “succinct, clear, and explicit.”
¶ 26 The State argued in the circuit court that counsel could not have performed deficiently
because Pagsisihan was already ordered removed from the United States and counsel could not
have discovered the reason he had not yet been removed through reasonable diligence. The State
cited no authority for its “previously ordered removable” exception to counsel’s duty to advise
about immigration consequences of the present offense. The reason Pagsisihan had not yet been
deported is beside the point; whether by grace or incompetence, he remained in the country and a
guilty plea for the offense of first degree murder ensured that his deportation would be automatic,
swift, and inevitable.
¶ 27 The language in Padilla points in this direction. The Court repeatedly spoke of the
immigration consequences of a “particular offense” or a “particular plea.” Padilla, 559 U.S. at
366, 369. The Court even parsed between the charges in a single indictment, some of which may
“automatically trigger[ ] the removal consequence” and some of which may not. Id. at 373. Here,
we know, for whatever reason, Pagsisihan’s previous convictions apparently did not
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“automatically trigger” his removal, but a conviction for murder does. Even though Pagsisihan’s
deportation was already possible, plea counsel was not absolved of her professional duty to advise
Pagsisihan that deportation after this plea would be certain.
¶ 28 Prejudice
¶ 29 Pagsisihan argues he was prejudiced by counsel’s failure to advise him about the
immigration consequences of a first degree murder plea. His affidavit acknowledges that he had
been previously ordered removable from the United States but lists several reasons, accruing over
two decades, that he believed deportation was neither likely nor imminent. His affidavit also
explains his connections to this country and lack of familiarity with the Philippines. The State
argues, primarily, that because Pagsisihan was already removable based on his convictions from
the 1980s, the immigration consequences of this plea were insignificant enough to make trial a
rational choice. Based on the circumstances presented here, we disagree with the State and find
Pagsisihan has made a substantial showing of prejudice.
¶ 30 We reject the State’s first prejudice argument out of hand. The State claims Pagsisihan
cannot establish prejudice because “he completely neglected to allege *** any legitimate claim of
actual innocence or to articulate a plausible defense that could have been raised at trial.” We do
not judge ineffectiveness claims that are based on consequences of a conviction, as opposed to
trial strategy, by that standard. People v. Brown, 2017 IL 121681, ¶ 34 (defendant does not have
to show he or she would have been “better off going to trial” for claims “involving a defendant’s
understanding of the consequences of pleading guilty”). Pagsisihan did not have to allege a claim
of actual innocence or a plausible defense to establish prejudice.
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¶ 31 Rather, Pagsisihan’s decision to reject a plea and proceed to trial need only have been
rational under the circumstances. Id. ¶ 39. Because deportation is so severe a consequence of a
criminal conviction, it can often be the paramount consideration for a noncitizen defendant. See
Lee, 582 U.S. at ___, 137 S. Ct. at 1968. To evaluate whether a decision to reject a plea is rational
in the immigration context, we consider (i) whether deportation was the “determinative issue” for
an individual in plea discussions, (ii) whether the defendant has strong connections to this country
and no other and (iii) whether taking a chance at trial is not “markedly harsher than pleading.” Id.
at ___, 137 S. Ct. at 1968-69. The State relies heavily on Brown to argue that Pagsisihan cannot
show any of the three factors. But Brown was not an immigration case, and we find the facts
alleged in Pagsisihan’s petition and affidavit satisfy the test in Lee.
¶ 32 We briefly set out some of the facts in Brown because they will be relevant at each step of
our analysis. There, the defendant pled guilty to the offense of armed habitual criminal, and the
State voluntarily dismissed a home invasion charge. Brown, 2017 IL 121681, ¶ 5. The court
admonished the defendant about the sentencing range for the offense and the defendant agreed that
he had not been promised anything in exchange for the plea. Id. ¶¶ 6-7. The defendant filed a
postconviction petition claiming plea counsel was ineffective for advising him that he would serve
50% of his sentence when he was required to serve 85% of his sentence. Id. ¶ 15. Our supreme
court affirmed the circuit court’s dismissal of the petition at the second stage applying the then-
recent decision in Lee. Id. ¶¶ 2, 47-53.
¶ 33 The State, citing Brown, argues the immigration consequences of the plea could not have
been Pagsisihan’s paramount concern because he said nothing during the plea colloquy about those
consequences and affirmatively stated that he had not been promised anything in exchange for his
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plea. We find Brown distinguishable on this point because there the defendant alleged that plea
counsel had affirmatively informed him (i.e., promised him) that he would serve his sentence at
50%. Id. ¶ 16. This means his statement on the record during the plea colloquy that no one
promised him anything in exchange for his plea effectively rebutted the claim in his petition. See
id. ¶ 51. Pagsisihan’s claim, on the other hand, is that plea counsel said nothing at all about the
immigration consequences of his plea, so his affirmative response to the court’s questions about
not receiving any promises does not rebut his claim.
¶ 34 The State’s argument also ignores the events Pagsisihan claimed took place before the plea
colloquy. He averred that he informed counsel about his citizenship status and asked counsel to
contact the Philippines consulate for him. Counsel said nothing about immigration in response. He
also averred that he would not have pled guilty and would have risked trial, citing his family ties
in the United States as the principle reason. Importantly, all the detailed evidence in Lee about the
defendant’s focus on immigration consequences came to light at an evidentiary hearing on a
habeas petition. Lee, 582 U.S. at ___, 137 S. Ct. at 1963. At this stage (see Pendleton, 223 Ill. 2d
at 473 (reciting standard of review)), we find Pagsisihan’s allegations sufficient to entitle him to a
similar hearing to test the credibility of his claims.
¶ 35 The State also argues that Pagsisihan’s gamble on a trial would have led to “markedly
harsher” results than a guilty plea. On this score, the State raises the 50 counts it voluntarily
dismissed as a result of Pagsisihan’s plea and the “possibility of the more severe punishment of 60
years’ incarceration rather than the 38 and 10 years, respectively, that he bargained for.” The
parties agree Pagsisihan was sentenced before truth-in-sentencing, and so he will serve his 38-year
sentence for first degree murder at 50%. We take judicial notice of the IDOC website, which shows
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Pagsisihan’s release from custody on December 24, 2028 (at age 62) and his discharge from his
sentence on December 24, 2031 (at age 65). We acknowledge recent cases finding that
consideration of good time credit is not the proper approach when determining age of release after
imposing sentence. See, e.g., People v. Peacock, 2019 IL App (1st) 170308, ¶ 19. We need not
decide the applicability of those cases here because we disagree with the State’s argument on its
own terms.
¶ 36 At oral argument, the State emphasized that the sentence Pagsisihan is currently serving
allows for his eventual release from custody and a life of “freedom” in the Philippines compared
to the de facto life sentence he may have received after a trial. The State cites Brown as authority
for its comparison of the sentencing consequences after a plea versus the possible sentencing
consequences after a trial. Brown, 2017 IL 121681, ¶¶ 49-50. In Brown, a side-by-side look at the
available sentencing ranges was important in determining the relative “harshness” of the
consequences for rejecting a plea because the defendant’s claim of plea counsel’s deficiency spoke
directly to the length of time he would serve in prison (50% versus 85%). Here we are dealing with
concerns of a different magnitude.
¶ 37 The State effectively reduces a noncitizen defendant’s consideration of the incalculable
human cost of deportation to a mechanical math problem where we do no more than plug in
numbers and get a “rational” result. Applying that approach here would be out of step with Lee
because it ignores the Supreme Court’s recognition that deportation is a “particularly severe
penalty” attending a criminal conviction and that defendants may hold their ability to remain in
the United States above any possible jail sentence. Lee, 582 U.S. at ___, 137 S. Ct. at 1968 (quoting
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Padilla, 559 U.S. at 365, 368). Maybe the term-of-years sentence after a trial would have been
longer, but it is not the only rational consideration for a noncitizen defendant.
¶ 38 In a similar vein, the State argues that Pagsisihan “merely asserts that life in the Philippines
after his release will be difficult.” The State has watered down Pagsisihan’s claim. His petition and
accompanying documents show he has a sufficiently strong connection to the United States and
none whatsoever to the Philippines.
¶ 39 Pagsisihan’s mother brought him to this country when he was seven. He has no memory
of the Philippines and knows no one there. Immediate family lives in the United States—according
to his immigration counsel’s representations at his initial removal proceedings, his mother was a
lawful temporary resident, his father was a lawful permanent resident, his sister is a citizen, and
Pagsisihan has a daughter who is also a citizen. Even if his parents are no longer living, or his
mother’s status has expired, most of his nuclear family resides in the United States on a lawful,
permanent basis. The record reveals Pagsisihan is married—nothing shows a dissolution of that
marriage or otherwise contradicts the information on the marriage certificate attached to his
petition. Finally, as a formal legal matter, his affidavit avers he no longer has a Philippines birth
certificate and the Philippines “would not issue [him] a travel document.” As a matter of life and
law, Pagsisihan’s connections to the Philippines are nonexistent and, essentially, the United States
is home.
¶ 40 We also agree with Pagsisihan that even if he received the equivalent of a life sentence
after trial, he would at least be guaranteed basic human necessities like food and shelter. Returning
him to a land totally foreign at an age where entering the workforce would be impracticable even
in this country does not guarantee him those essential survival basics. Moreover, remaining here,
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even in custody, has tangible relational benefits—at least his living family members can visit.
Returning him to the Philippines, away from family, cuts off any source of familial connection
forever.
¶ 41 We turn, finally, to what we consider the State’s strongest argument. The State contends
Pagsisihan cannot have suffered prejudice from counsel’s failure to advise him about the
immigration consequences of his plea because he had already been ordered removable from the
United States. The circuit court reached a similar conclusion finding that Pagsisihan was not
prejudiced because he “cannot say he was unaware of the risk of deportation.”
¶ 42 This argument has some surface appeal; how can counsel be ineffective for failing to advise
a defendant about information he already knows? But, as with the State’s deficiency argument in
the circuit court, the State does not cite precedent for this “already ordered removable” exception.
Our own research has revealed a single appellate court decision where, as a matter of law, a
defendant may never establish ineffective assistance of counsel for failure to inform a defendant
about immigration consequences of a plea where the defendant already had a criminal conviction
rendering him or her deportable. See Hardware v. State, 185 So. 3d 530, 532-35 (Fla. Dist. Ct.
App. 2015) (Emas, J. specially concurring) (explaining history of rule in Florida District Court of
Appeal). We reject this kind of categorical reasoning as inconsistent with Lee and our standard of
review.
¶ 43 The Supreme Court’s prejudice analysis in Lee started from the proposition that
“categorical rules are ill suited to an inquiry” dependent on case-by-case factual evaluations. Lee,
582 U.S. at ___, 137 S. Ct. at 1966. The Court also emphasized that we weigh the consequences
of a guilty plea versus a trial “from the defendant’s perspective.” Id. at ___, 137 S. Ct. at 1966-67.
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Because we have Pagsisihan’s affidavit, we know that perspective here. Pagsisihan was ordered
removable after his 1985 and 1987 criminal convictions. But for 20 years, the United States did
not remove him, despite having him in custody for months in 1995. He was granted work
authorization the next year. In 2009, he signed a form that merely informed him that he was on
“Investigation Status.” At best, these signals convey a mixed message, and they are complicated
by the immigration judge’s express admonishment to Pagsisihan that his removal order was “not
self-executing” and there may have been discretionary relief available to Pagsisihan later.
¶ 44 These factual allegations become critical in light of the Supreme Court’s parting instruction
in Lee: “We cannot agree that it would be irrational for a defendant in Lee’s position to reject the
plea offer in favor of a trial. But for his attorney’s incompetence, Lee would have known that
accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.”
(Emphases in original.) Id. at ___, 137 S.Ct. at 1968. Based on Pagsisihan’s affidavit, the same
conclusion follows. Given his two decades of on-and-off experience with immigration officials, it
would be reasonable for a person in Pagsisihan’s position to believe his deportation was not
imminent. Contrastingly, had counsel given him proper advice, he would have known a guilty plea
to first degree murder would have guaranteed his removal—as an “aggravated felon[ ],” his
removal would be expedited and he would not be eligible for any discretionary relief from removal.
¶ 45 As we have repeatedly emphasized, we must take Pagsisihan’s allegations as true and
construe them liberally in his favor. Sanders, 2016 IL 118123, ¶¶ 31, 42. The trial court rejected
Pagsisihan’s claim on the ground that “all of these examples of interactions with the immigration
system are tantamount to notice of deportation risk,” implicitly contesting Pagsisihan’s assertion
that he “assumed that [he] was not subject to deportation because [he] had previously been released
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instead of being deported.” The record makes Pagsisihan’s assumption facially reasonable, and the
court’s decision not to believe him came too soon. Id. ¶ 42.
¶ 46 We find that Pagsisihan demonstrated a substantial showing that his right to
constitutionally effective plea counsel was violated. Perhaps “[n]ot everyone in [Pagsisihan]’s
position would make the choice to reject the plea. But we cannot say it would be irrational to do
so.” See Lee, 582 U.S. at ___, 135 S. Ct. at 1969. Any additional factfinding and credibility
determinations need to be made at an evidentiary hearing.
¶ 47 Reversed and remanded.
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No. 1-18-1017
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR-3599; the Hon. Diane Cannon, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Benjamin Wimmer, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Hareena Meghani-Wakley, and Summer Moghamis, Appellee: Assistant State’s Attorneys, of counsel), for the People.
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