Torres, Ex Parte Manuel

• Court: Court of Appeals of Texas
• Decided: February 11, 2015
• Docket: PD-0679-14
• Status: Published

Opinion

PD-0679-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/10/2015 5:06:38 PM Accepted 2/11/2015 9:26:20 AM ABEL ACOSTA COURT OF CRIMINAL APPEALS CLERK

PD-0679-14 February 11, 2015

Ex parte Manuel Torres

On Discretionary Review from No. 08-12-00244-CR Eighth Court of Appeals, Amarillo

On Appeal from No. 20110D01278 34th Judicial District Court, El Paso County

Amici Curiae Brief in Support of Appellant Manuel Torres Submitted by the National Immigration Project of the National Lawyers Guild and the Texas Fair Defense Project

Susanne Pringle Sejal Zota Michael Mowla 510 South Congress Ave. 14 Beacon Street 445 E. FM 1382 No. 3-718 Suite 208 Suite 602 Cedar Hill, TX 75104 Austin, TX 78704 Boston, MA 02108 Phone: 972-795-2401 Phone: 512-637-5220 Phone 617-227-9727 Fax 972-692-6636 Fax 512-637-5224 Fax 617-227-5495 michael@mowlalaw.com springle@fairdefense.org sejal@nipnlg.org Texas Bar No. 24048680 Texas Bar No. 24083686 NC Bar No. 36535 Counsel for Texas Fair Counsel for National Defense Project Immigration Project, National Lawyers Guild I. Identity of Parties, Counsel, and Judges

Manuel Torres, Appellant.

Mario Ortiz Saroldi, Attorney for Appellant at trial, on appeal, and on discretionary review, 310 North Mesa Suite 900, El Paso, Texas 79901, email msaroldi@lopezsaroldi.com.

State of Texas, Appellee.

Jaime Esparza, El Paso County District Attorney, Attorney for Appellee, 500 E. San Antonio Suite 201, El Paso, Texas 79901

Jose J. Monsivais, El Paso County District Attorney, Attorney for Appellee, 500 E. San Antonio Suite 201, El Paso, Texas 79901

Douglas Tiemann, El Paso County District Attorney, Attorney for Appellee, 500 E. San Antonio Suite 201, El Paso, Texas 79901

Lily Stroud, El Paso County Assistant District Attorney, Attorney for Appellee, 500 E. San Antonio Suite 201, El Paso, Texas 79901, email lstroud@epcounty.com.

Lisa McMinn, State Prosecuting Attorney, Attorney for Appellee, P.O. Box 13046, Austin, Texas 78711-3046, phone 512-463-1660, fax 512-463-5724, email Lisa.McMinn@spa.texas.gov.

John Messinger, Assistant State Prosecuting Attorney, Attorney for Appellee, P.O. Box 13046, Austin, Texas 78711-3046, phone 512-463-1660, fax 512-463- 5724, email john.messinger@spa.state.tx.us.

Susanne Pringle, Texas Fair Defense Project, 510 South Congress Avenue Suite 208, Austin, Texas 78704, phone 512-637-5220, fax 512-637-5224, email springle@fairdefense.org.

Sejal Zota, National Immigration Project of the National Lawyers Guild, 14 Beacon Street Suite 602, Boston, Massachusetts 02108, phone 617-227-9727, fax 617-227-5495, email sejal@nipnlg.org.

Page 2 of 46 Michael Mowla, 445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972- 795-2401, fax 972-692-6636, email michael@mowlalaw.com.

William Moody, Presiding Judge, 34th Judicial District Court, Ellis County, P.O. Box 284, Hillsboro, Texas 76645-0284, phone 254-582-4045, fax 254-582- 4010.

Chief Justice Ann Crawford McClure, Justice Guadalupe Rivera, and Justice Yvonne T. Rodriguez, Eighth Court of Appeals, 500 E. San Antonio Ave Room 1203, El Paso, Texas 79901.

Page 3 of 46 II. Table of Contents

I. Identity of Parties, Counsel, and Judges ..........................................................2 II. Table of Contents .............................................................................................4 III. Table of Authorities .........................................................................................6 IV. Appendix..........................................................................................................9 V. Interest of Amici Curiae ................................................................................10 VI. Statement of the Case and Procedural History ..............................................12 VII. Statement Regarding Oral Argument ............................................................13 VIII. Issues Presented by Amici Curiae .................................................................14 IX. Facts ...............................................................................................................15 X. Summary of the Arguments by Amici Curiae ...............................................16 XI. Argument .......................................................................................................17 1. First Issue presented by Amici Curiae: The Court of Appeals correctly held that trial counsel’s failure to correctly and clearly advise Appellant that his removal is virtually certain constituted deficient performance under Padilla and Strickland. ....................................17 i. Introduction .........................................................................................17 ii. The State misinterprets the holding of Padilla ...................................17 iii. The legal advice provided by trial counsel to Appellant did not comport with the standards set forth in Padilla ......................26 iv. Ample attorney resources make it easy to provide accurate advice of the clear immigration consequences to pleading guilty or no-contest to this offense .......................................29 v. Conclusion ...........................................................................................35 2. Second Issue presented by Amici Curiae: The Court of Appeals correctly held that in viewing the totality of the circumstances, Appellant met his burden in establishing prejudice. .....................................36 i. A defendant satisfies the prejudice requirement of Strickland by demonstrating a reasonable probability that, without the ineffective assistance of counsel, he would not have accepted the guilty plea and that it would have been rational to reject the plea. ...................................................36

Page 4 of 46 ii. A defendant does not have to demonstrate that he would have gone to trial; he just needs to demonstrate that it would have been rational to reject the plea agreement. ......................37 iii. It is “rational” for a defendant to reject a plea bargain because of its deportation consequences. ............................................40 iv. A defendant need not demonstrate that the case would have resulted in a more favorable outcome, only that he would have rejected the plea bargain in favor of other proceedings. .........................................................................................43 v. The Court of Appeals conducted a proper prejudice inquiry under Padilla ..........................................................................43 XII. Conclusion and Prayer ...................................................................................44 XIII. Certificate of Service .....................................................................................46 XIV. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................46

Page 5 of 46 III. Table of Authorities

Cases Aguilar v. State, 375 S.W.3d 518 (Tex. App. Houston [14th Dist.] 2012) ..............................................................................................................23 Aguilar v. State, 393 S.W.3d 787 (Tex. Crim. App. 2013) .....................................23 Bahtiraj v. State, 840 N.W.2d 605 (N.D. 2013) ......................................................25 Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) ...............................................11 Chaidez v. United States, 133 S.Ct. 1103 (2013) ............................................. 40, 41 Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011) .......................................41 Commonwealth v. DeJesus, 9 N.E.3d 789 (Mass. 2014) ............................ 22, 25, 28 Denisyuk v. State, 30 A.3d 914 (Md. 2011) .............................................................42 Encarnacion v. State, 763 S.E.2d 463 (Ga. 2014) ............................................ 20, 25 Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013) .....................................39 Ex parte Cisneros, No. 08-11-00180-CR, 2013 WL 1281995 (Tex. App. El Paso, Mar. 28, 2013) (unpublished opinion)....................................42 Ex Parte Leal, 427 S.W.3d 455 (Tex. App. San Antonio 2014) ..................... passim Ex parte Martinez, 13-10-00390-CR, 2013 WL 2949546 (Tex. App. Corpus Christi, June 13, 2013, no pet.) (mem. op., not designated for publication) ............................................................................23 Ex parte Olvera, 394 S.W.3d 572 (Tex. App. Dallas 2012, pet. granted), rev’d on retroactivity grounds, PD-1215-12, 2013 WL 1149926 (Tex. Crim. App. Mar. 20, 2013) (not designated for publication) ..............................................................................................24 Ex parte Ramirez, 08-11-00073-CR, 2012 WL 3113140 (Tex. App. El Paso, Aug. 1, 2012, no pet.) (not designated for publication) .......................23 Ex parte Romero, 351 S.W.3d 127 (Tex. App. San Antonio 2011, pet. granted), rev’d on retroactivity grounds, 393 S.W.3d 788 (Tex. Crim. App. 2013) ...........................................................................................24 Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App. Houston [1st Dist.] 2011, pet. granted), rev’d on retroactivity grounds, 393 S.W.3d 787 (Tex. Crim. App. 2013) ..........................................................................23

Page 6 of 46 Ex parte Torres, No. 08-12-00244-CR, 2014 Tex. App. LEXIS 3168, 2014 WL 1168929 (Tex. App. El Paso, March 21, 2014, pet. granted) (memorandum opinion) ............................................... 12, 17, 20, 44 Hernandez v. State, 124 So.3d 757 (Fla. 2012) .......................................................24 Hill v. Lockhart, 474 U.S. 52 (1985) ................................................................ 36, 37 INS v. St. Cyr, 533 U.S. 289 (2001) .........................................................................11 Johnson v. State, 169 S.W.3d 223 (2005) ................................................................43 Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) ..............................................37 Lafler v. Cooper, 132 S.Ct. 1376 (2012) .................................................................38 Martinez v. State, PD-1338-11, 2012 WL 1868492 (Tex. Crim. App. May 16, 2012) (not designated for publication) ............................................23 Matter of Salazar-Regino, 23 I&N Dec. 223 (BIA 2002) .......................................27 Missouri v. Frye, 132 S.Ct. 1399 (2012) .......................................................... 37, 38 Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) ............................................................27 Padilla v. Kentucky, 559 U.S. 356 (2010) ....................................................... passim Roe v. Flore-Ortega, 528 U.S. 470 (2000) ................................................. 36, 40, 41 Salazar v. State, 361 S.W.3d 99 (Tex. App. Eastland 2011, no pet.) ... 24, 40, 41, 43 State v. Campos-Corona, __ P.3d __, 2013 COA 23 (Colo. App. Feb. 28, 2013) ........................................................................................................25 State v. Guzman-Ruiz, 6 N.E.3d 806 (Ill. App. 3d 2014) .......................................25 State v. Kostyuchchenko, 8 N.E.3d 353 (Ohio App. 2014) .....................................26 State v. Martinez, 253 P.3d 445 (Wash. App. 2011) ...............................................26 State v. Sandoval, 249 P.3d 1015 (Wash. 2011) ............................................... 40, 42 Strickland v. Washington, 466 U.S. 668 (1984) ................................... 30, 36, 37, 41 United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011) ...........................................24 United States v. Choi, 581 F. Supp. 2d 1162 (N.D. Fla. 2008) ...............................22 United States v. Mendoza-Lopez, 481 U.S. 828 (1987) ...........................................11 United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) ...................................... 40, 41 Statutes 8 U.S.C. § 101 (2015) ..............................................................................................26

Page 7 of 46 8 U.S.C. § 1101 (2015) ............................................................................................26 8 U.S.C. § 1182 (2015) ............................................................................................24 8 U.S.C. § 1227 (2015) ............................................................................... 19, 24, 26 Other Authorities 2003. L. Coyle, B. Hines & L. Teran, Basics of Immigration Law for Texas Criminal Defense Attorneys, Texas Criminal Defense Lawyers Association (2003) ..........................................................................33 Amer. Bar Ass’n., ABA Standards for Criminal Justice, Pleas of Guilty Standard 14 (3d ed. 1999)...................................................................31 Amici Curiae Brief for the Nat‘l Ass’n. of Criminal Defense Lawyers, et. al. ...............................................................................................................32 B. Bates, Good Ideas Gone Bad: Plea Bargains & Resident Aliens, 66 Tex. Bar J. 878, 882 (Nov. 2003) ..................................................................33 H.R. Conf. Rep. No. 104-828 (1996) (“Joint Explanatory Statement”) ..................27 M. Castillo, Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky, 63 Baylor L. Rev. 587 (2011) .............................................................................................33 Nat’l Legal Aid and Defender Ass’n, Performance Guidelines for Criminal Representation § 6.2 (1995) ...........................................................31 State Bar of Texas, Performance Guidelines for Noncapital Criminal Defense Representation 6.2 (2011) ...............................................................31 Rules Tex. Rule App. Proc. 68.11 (2015) ..........................................................................46 Tex. Rule App. Proc. 68.4 (2015) ............................................................................13 Tex. Rule App. Proc. 9.4 (2015) ..............................................................................46

Page 8 of 46 IV. Appendix

Appendix A: Cover page to L. Coyle, B. Hines & L. Teran, Basics of Immigration Law for Texas Criminal Defense Attorneys, Texas Criminal Defense Lawyers Association (2003)

Appendix B: Cover pages of various presentations on immigration consequences of criminal cases presented by the National Immigration Project.

Appendix C: Cover pages for various continuing legal education presentations on the immigration consequences of criminal cases.

Appendix D: Opinion and Judgment in Ex parte Torres, No. 08-12-00244-CR, 2014 Tex. App. LEXIS 3168, 2014 WL 1168929 (Tex. App. El Paso, March 21, 2014, pet. granted) (memorandum opinion)

Page 9 of 46 V. Interest of Amici Curiae

The Texas Fair Defense Project (“TFDP”) is a not-for-profit organization

located in Austin, Texas. Its mission is to improve the fairness of criminal courts

in Texas and to ensure that all Texans have access to justice. TFDP focuses on the

protection of the Sixth Amendment in Texas state courts and issues related to local

practices and procedures affecting indigent defendants, including indigent

defendants who are not citizens of the United States. TFDP was also closely

involved in the development and drafting of Performance Guidelines for Non-

Capital Defense Representation that were adopted by the State Bar of Texas Board

of Directors in 2011 referenced in this brief.

Susanne Pringle is the staff attorney for TFDP. Susanne Pringle and TFDP

have not been paid any fee for preparing this Amici Curiae Brief.

The National Immigration Project of the National Lawyers Guild (“National

Immigration Project”) is a national not-for-profit membership organization of

immigration attorneys, legal workers, grassroots advocates, and others working to

secure a fair administration of the immigration and nationality laws. It has

members in almost all 50 states, including Texas. As an organization with leading

expertise in the intersection of criminal and immigration law, the National

Immigration Project since 1984 has provided legal training to the criminal defense

bar on the immigration consequences of criminal conduct in 43 states, the District

Page 10 of 46 of Columbia, Puerto Rico, and U.S. Virgin Islands, including Texas. The length of

these training sessions ranges from one hour to several days. The format for these

training sessions includes workshops, seminars, webinars and podcasts. It has

authored the treatise Immigration Law and Crimes, which was first published in

1984 and cited by Justice Alito in Padilla v. Kentucky, 559 U.S. 356 (2010). In

addition, the U.S. Supreme Court has accepted amici curiae briefs submitted by the

National Immigration Project in several important cases involving the application

of criminal and immigration law. See, e.g., Carachuri-Rosendo v. Holder, 560 U.S.

563 (2010); Padilla; INS v. St. Cyr, 533 U.S. 289 (2001); and United States v.

Mendoza-Lopez, 481 U.S. 828 (1987).

Sejal Zota is the legal director of the National Immigration Project. Sejal

Zota and National Immigration Project have not been paid any fee for preparing

this Amici Curiae Brief.

Michael Mowla is a private Dallas County attorney who practices regularly

before the appellate courts of Texas. Michael Mowla has not been paid any fee for

preparing this Amici Curiae Brief.

Page 11 of 46 To The Honorable Judges of the Court of Criminal Appeals:

Amici Curiae submit this Brief in support of Appellant Manuel Torres:

VI. Statement of the Case and Procedural History

This case arises out of the Opinion and judgment of the Eighth Court of

Appeals in Ex parte Torres, No. 08-12-00244-CR, 2014 Tex. App. LEXIS 3168,

2014 WL 1168929 (Tex. App. El Paso, March 21, 2014, pet. granted)

(memorandum opinion) (See Appendix D). The Court of Appeals reversed the trial

court’s denial of Appellant’s application for writ of habeas corpus application

seeking reversal of his guilty plea to one count of felony possession of a controlled

substance and one count of robbery. Torres, Id. at *20-21; see RR, 36.1

The State filed a petition for discretionary review, which was granted on

September 17, 2014. On October 17, 2014, the State filed its brief. On December

23, 2014, Appellant filed his brief. Amici Curiae now submit this brief.

1 The Clerk’s Record is referenced throughout this Brief as “CR” followed by the page number of the Clerk’s Record. The Reporter’s Record is referenced as “RR” and page number. Page 12 of 46 VII. Statement Regarding Oral Argument

In this Court’s September 17, 2014 notice in which it granted the State’s

petition for discretionary review, the Court announced that oral argument will not

be permitted. See Tex. Rule App. Proc. 68.4(c) (2015).

Page 13 of 46 VIII. Issues Presented by Amici Curiae

First Issue presented by Amici Curiae: The Court of Appeals correctly held that trial counsel’s failure to correctly and clearly advise Appellant that his removal is virtually certain constituted deficient performance under Padilla and Strickland.

Second Issue presented by Amici Curiae: The Court of Appeals correctly held that in viewing the totality of the circumstances, Appellant met his burden in establishing prejudice.

Page 14 of 46 IX. Facts

Amici Curiae adopt the findings of fact by the Court of Appeals. See Torres,

Id. at *2-9.

Page 15 of 46 X. Summary of the Arguments by Amici Curiae

Amici Curiae present two issues in this Brief. First, Amici Curiae will argue

that the Court of Appeals correctly held that trial counsel’s failure to correctly and

clearly advise Appellant that his removal is virtually certain constituted deficient

performance under Padilla and Strickland. Second, Amici Curiae will argue that

the Court of Appeals correctly held that in viewing the totality of the

circumstances, Appellant met his burden in establishing prejudice. As a result,

Amici Curiae will argue that this Court should affirm the Opinion and judgment of

the Eighth Court of Appeals.

Page 16 of 46 XI. Argument

1. First Issue presented by Amici Curiae: The Court of Appeals correctly held that trial counsel’s failure to correctly and clearly advise Appellant that his removal is virtually certain constituted deficient performance under Padilla and Strickland.

i. Introduction Padilla holds that defense counsel must accurately advise noncitizen

defendants like Appellant that deportation is “presumptively mandatory” when a

proposed plea clearly falls within a removal ground. See Padilla, 559 U.S. at 368-

369 . To meet the standard of constitutional effectiveness, Appellant’s trial counsel

was obligated to advise him unequivocally that his plea would subject him to

presumptively mandatory deportation. As the following arguments in this first

issue will show, the Court of Appeals correctly held that trial counsel’s failure to

provide such advice and admitted failure to research the immigration consequences

of the proposed plea constituted ineffective assistance of counsel. Torres, Id. at *5.

In issue two below, undersigned counsel will then discuss why the Court of

Appeals correctly held that in viewing the totality of the circumstances, Appellant

met his burden in establishing prejudice.

ii. The State misinterprets the holding of Padilla The State argues that even where the removal consequences are clear,

defense counsel need only advise her client that the guilty plea “carries a risk of

adverse immigration consequences” and no more. State Br. at 42-43. The State

Page 17 of 46 argues that with that advice defense counsel has satisfied his or her Sixth

Amendment obligation under Padilla. Id.

The State misinterprets the Supreme Court’s holding in Padilla. In

Padilla, the Supreme Court held that the scope of trial counsel’s duty hinges on

the clarity of the immigration consequence. 559 U.S. at 369 (emphasis added).

If a plea “clear[ly]” falls within a ground of removal, counsel must advise the

client that “deportation [is] presumptively mandatory.” Id. (emphasis added);

see also id. at 368 (defense counsel must advise a client when the immigration

statute “specifically commands removal”). In contrast, when the risk of

deportation is not clear, counsel need only advise the defendant “that pending

criminal charges may carry a risk of adverse immigration consequences.” Id. at

369 (emphasis added). Applying these rules to Padilla’s claim, the Court found

that “the terms of the [controlled substance removal ground] are succinct, clear,

and explicit in defining the removal consequence of Padilla’s conviction.” Id. at

368. Because the immigration consequences “could easily be determined from

reading the removal statute,” “constitutionally competent counsel would have

advised him that his conviction for drug distribution made him subject to

automatic deportation.” Id. at 369.

In other words, when the removal consequence is clear—as when a

noncitizen pleads guilty to an offense that unambiguously qualifies as a controlled

Page 18 of 46 substance offense—a defense attorney cannot simply tell a client there is a “risk”

of removal or that he or she “may” be removed; more specific and unequivocal

advice is required. And, the law is that a noncitizen commits an offense for which

deportation is presumptively mandatory if he is convicted of an “aggravated

felony offense.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (2015). And while the Court

did not specify the exact words an attorney must use when the removal

consequence is clear, the Court noted that the removal of someone in Padilla’s

situation was “virtually mandatory,” “automatic,” “virtually inevitable,”

“practically inevitable,” “presumptively mandatory,” and “nearly an automatic

result[.]” See id. at 359, 360, 364, 366, 369.

Yet, the State attempts to limit Padilla by seizing on the Court’s occasional

use of the word “risk.” See State Br. at 42-43. But just because the Court said

defense counsel must warn a client about the “risk” of removal does not mean

defense counsel must literally tell a client that they “risk” removal without saying

anything else. Rather, as the rest of Padilla makes clear, in cases in which the

removal consequence is clear, defense counsel must inform the noncitizen that the

risk is particularly great—that is, the risk is such that removal is virtually certain.

In other words, a defense attorney must always tell a noncitizen client that there is

a risk of removal, and exactly how much risk the attorney must tell the client he or

she faces depends on the circumstances of the individual’s case.

Page 19 of 46 Further, as the Court of Appeals found, trial counsel’s constitutional duty to

inform his client that his removal is a virtual legal certainty does not wane merely

because counsel believes the probability of actual removal is uncertain based on

his past experience and the government’s enforcement priorities. Torres, Id. at *5

(citing Padilla, 559 U.S. at 359); see also Encarnacion v. State, 763 S.E.2d 463,

465-466 (Ga. 2014) (“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 8 U.S.C. §

1227(a), some noncitizens convicted of an aggravated felony might avoid removal.

However, as we understand federal immigration law, those circumstances are

exceptionally rare. An attorney’s advice as to the likelihood of deportation must be

based on realistic probabilities, not fanciful possibilities.”).

In ruling that defense counsel must properly calibrate their advice to

accurately communicate the severity of the immigration consequences attendant to

a plea, the Supreme Court sought to ensure that noncitizen defendants like Padilla

and Appellant are unequivocally informed when deportation is a virtual certainty.

There is no other way to read the majority opinion, as confirmed by Justice Alito’s

concurrence. Justice Alito supported a rule in which defense attorneys needed to do

no more than “advise the defendant that a criminal conviction may have adverse

immigration consequences[.]”Padilla, 559 U.S. at 375 (Alito, J. concurring). But,

Page 20 of 46 as Justice Alito himself conceded, the majority unequivocally rejected his

reasoning: “the Court’s opinion would not just require defense counsel to warn the

client of a general risk of removal; it would also require counsel, in at least some

cases, to specify what the removal consequences of a conviction would be.” Id. at

377 (emphasis in original). The state’s reading—that the burden imposed on

counsel is limited to informing a client of the risk of deportation—almost perfectly

echoes the rule supported by Justice Alito’s concurring opinion, but rejected by the

majority. If any doubt existed that the State’s reading of Padilla is wrong,

reviewing the back-and-forth between the Padilla majority and Justice Alito’s

concurring opinion should put those doubts to rest.

In rejecting Justice Alito’s position that every case requires only a warning

of possible deportation, the majority recognized that a warning of possible

deportation is categorically different from a warning of virtually certain

deportation. The stark difference between the two is aptly illustrated by Honorable

Robert L. Hinkle, addressing the government’s argument that a defendant pleading

to an aggravated felony need only know that deportation was a possibility: “Well, I

know every time that I get on an airplane that it could crash, but if you tell me it’s

going to crash, I’m not getting on.” United States v. Choi, 581 F. Supp. 2d 1162

(N.D. Fla. 2008), Transcript of Motion Hearing (Sept. 24, 2008).

A warning of “possible deportation” carries far less influence on a

Page 21 of 46 defendant’s calculus about whether to accept a plea than a “virtually certain”

warning. The former communicates that a defendant has the opportunity to defend

against deportation. A defendant receiving this advice might well take her chances

in immigration court in exchange for a reduced criminal charge or sentence. Where

an offense falls into a ground of removal, however, this warning fails to convey the

almost certain likelihood of removal.

A defendant receiving the “virtually certain” warning, however, will

correctly understand that the only meaningful way to prevent deportation is to

negotiate an immigration-safe plea in criminal proceedings. Such advice accurately

reflects the severe and virtually certain consequences of her guilty plea. For

example, there is a significant difference “in a lawyer’s advice to a client that the

client ‘faces’ five years of incarceration on a charge, as compared to advice that the

conviction will result in a five-year mandatory minimum prison sentence.”

Commonwealth v. DeJesus, 9 N.E.3d 789, 796 n.7 (Mass. 2014). Put another way,

an attorney advising a client that she “might” be deported is like saying she

“might” get life in prison, or she might get no sentence at all.

Texas courts of appeals have reiterated and applied Padilla’s holding that

counsel must unequivocally inform a defendant when deportation is a “virtual

certainty.” See Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App. Houston [14th

Dist.] 2012) (Under Padilla, a criminal defendant who faces almost certain

Page 22 of 46 deportation is entitled to know more than that it is possible that a guilty plea could

lead to removal; he is entitled to know that it is a virtual certainty), rev’d on

retroactivity grounds, Aguilar v. State, 393 S.W.3d 787, 788 (Tex. Crim. App.

2013); see, e.g., Ex parte Leal, 427 S.W.3d 455, 461-462 (Tex. App. San Antonio

2014) (holding that counsel could have readily determined that appellant’s second

plea to a controlled substance would result in deportation and therefore should

have provided accurate, specific advice, not a general warning of some adverse

immigration consequence); Ex parte Ramirez, 08-11-00073-CR, 2012 WL

3113140, at *3-4 (Tex. App. El Paso, Aug. 1, 2012, no pet.) (not designated for

publication); Martinez v. State, PD-1338-11, 2012 WL 1868492, at *4 (Tex. Crim.

App. May 16, 2012) (not designated for publication), overruling on retroactivity

grounds recognized on remand sub nom Ex parte Martinez, 13-10-00390-CR,

2013 WL 2949546, at *2 (Tex. App. Corpus Christi, June 13, 2013, no pet.) (mem.

op., not designated for publication); Ex parte Tanklevskaya, 361 S.W.3d 86, 96-97

(Tex. App. Houston [1st Dist.] 2011, pet. granted), rev’d on retroactivity grounds,

393 S.W.3d 787 (Tex. Crim. App. 2013) (recognizing duty to explicitly state that

client will be deemed inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2015) for

pleading guilty to “violation of . . . any law...relating to a controlled substance...”

because immigration consequences were clear and presumptively mandatory); Ex

parte Olvera, 394 S.W.3d 572, 576 (Tex. App. Dallas 2012, pet. granted), rev’d on

Page 23 of 46 retroactivity grounds, PD-1215-12, 2013 WL 1149926 (Tex. Crim. App. Mar. 20,

2013) (not designated for publication) (counsel has duty to inform client that

pleading guilty to aggravated felony will result “in automatic deportation or

exclusion from the country” under 8 U.S.C. § 1227(a)(2)(A)(iii)(2015)); Ex parte

Romero, 351 S.W.3d 127, 131 (Tex. App. San Antonio 2011, pet. granted), rev’d

on retroactivity grounds, 393 S.W.3d 788 (Tex. Crim. App. 2013); Salazar v.

State, 361 S.W.3d 99, 103 (Tex. App. Eastland 2011, no pet.) (use of terms

“likelihood” and “possibility” of removal when conviction would result in “certain

deportation” rendered counsel’s advice ineffective).

A multitude of state and federal appellate courts agree. See, e.g., United

States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (holding that a “defendant who

faces almost certain deportation is entitled to know more than that it is possible

that a guilty plea could lead to removal; he is entitled to know that it is a virtual

certainty”) (emphasis in original); Hernandez v. State, 124 So.3d 757, 762 (Fla.

2012) (where “defense counsel merely advised Hernandez that a plea [to a

controlled substance offense] could/may affect [Hernandez’s] immigration status,”

he “was deficient under Padilla for failing to advise Hernandez that his plea

subjected him to presumptively mandatory deportation”); Encarnacion v. State,

763 S.E.2d 463, 465-466 (Ga. 2014) (because “a conviction for an aggravated

felony automatically triggers the removal consequence and almost always leads to

Page 24 of 46 deportation,” counsel “has a duty to accurately advise his client of that fact.”);

DeJesus, 9 N.E.3d at 793-794 (holding that defense counsel did not satisfy

obligation under Padilla to accurately inform defendant that the legal consequence

of pleading guilty to an aggravated felony would be “presumptively mandatory

deportation” where counsel only advised the defendant that he would be “eligible

for deportation”); Bahtiraj v. State, 840 N.W.2d 605, 610 (N.D. 2013) (where

client’s conviction for an aggravated felony resulted in “presumptively mandatory

deportation,” counsel’s advice that deportation was possible constituted deficient

performance); State v. Campos-Corona, __ P.3d __, 2013 COA 23, at *3 (Colo.

App. Feb. 28, 2013) (holding that where removal is mandatory, “plea counsel did

not perform reasonably by merely advising Campos–Corona that a plea may carry

an adverse immigration risk and thus did not provide adequate assistance”); State

v. Guzman-Ruiz, 6 N.E.3d 806, 810 (Ill. App. 3d 2014) (holding defense counsel’s

“representation fell below an objective standard of reasonableness” when he failed

to inform defendant that, if she accepted the plea agreement, her deportation for a

controlled substance conviction would be “presumptively mandatory”); State v.

Kostyuchchenko, 8 N.E.3d 353, 357 (Ohio App. 2014) (“trial counsel, in

negotiating Kostyuchenko’s guilty plea, had a duty under Padilla to ascertain from

the immigration statutes, and to accurately advise him, that his conviction

mandated his deportation”; general advice regarding possible deportation was

Page 25 of 46 insufficient); State v. Martinez, 253 P.3d 445, 448 (Wash. App. 2011) (finding

counsel’s performance deficient where he “solely discussed the possibility of

deportation” and “did not warn defendant that his deportability for an aggravated

felony drug trafficking conviction was “certain”).

iii. The legal advice provided by trial counsel to Appellant did not comport with the standards set forth in Padilla The advice in Appellant’s case fell far short of the standards set forth in

Padilla. Appellant—a lawful permanent resident—pleaded guilty to felony

possession of a cocaine and robbery. (RR, 5). The Immigration and Nationality

Act (INA) provides that a conviction for possession of cocaine is a deportable

offense under immigration law. See 8 U.S.C. § 1227(a)(2)(B)(i) (2015) (state law

conviction “relating to a controlled substance . . . other than a single offense

involving possession for one’s own use of 30 grams or less of marijuana” is a

deportable offense); see also 8 U.S.C. § 101(a)(43) (2015).

In addition, for immigration consequences, deferred adjudication community

supervision is the same as a conviction. See 8 U.S.C. § 1101(a)(48)(A) (2015)

(“The term “conviction” means...a formal judgment of guilt of the alien entered by

a court or, if adjudication of guilt has been withheld, where a judge or jury has

found the alien guilty or the alien has entered a plea of guilty or nolo contendere or

has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered

Page 26 of 46 some form of punishment, penalty, or restraint on the alien’s liberty to be

imposed.”). Both the Board of Immigration Appeals and the federal appellate

courts have consistently held that any admission of guilt, whether a judgment of

deferred adjudication community supervision or regular community supervision,

amounts to a “conviction” for immigration purposes. See Matter of Salazar-

Regino, 23 I&N Dec. 223 (BIA 2002); Moosa v. INS, 171 F.3d 994, 1005-1006

(5th Cir. 1999); H.R. Conf. Rep. No. 104-828 at 224 (1996) (“Joint Explanatory

Statement”) (clarifying “Congressional intent that even in cases where adjudication

is ‘deferred,’ the original finding or confession of guilt is sufficient to establish a

‘conviction’ for purposes of the immigration laws”).

Thus, there should have been no confusion that Appellant was pleading

guilty to an offense that Congress classifies as a deportable controlled substance

offense. In fact, the Supreme Court in Padilla expressly found that the terms of the

very statute at issue here are “succinct, clear, and explicit” in defining the removal

consequence of a drug conviction. Padilla, 559 U.S. at 368. Given that, this was

not a case where the “criminal defense attorney need[ed to] do no more than

advise” the client that the plea carries “a risk of adverse immigration

consequences.” Id. at 369.

Instead, trial counsel Kenrick’s “clear” duty was to tell Appellant that

accepting the Government’s plea agreement would make his “removal virtually

Page 27 of 46 certain,” that Appellant was pleading guilty to an offense that makes Appellant

“presumably deportable,” or words to this effect. See Padilla, 559 U.S. at 369;

DeJesus, 9 N.E.3d at 795-796. However, trial counsel failed to meet this duty

because he never provided such advice. Notably absent from Kenrick’s response

about the advice he had given Appellant is a statement that his removal was

virtually certain or that Appellant was pleading to an offense that is presumably

deportable. Kenrick testified that he believed that the two felonies Torres was

facing were aggravated felonies but did not inform Appellant of the very important

fact that he would be removable if he pled to these charges (RR, 25-27).

Rather, according to trial counsel, before Torres pled guilty, he spent

“[p]robably less than a minute” explaining the immigration consequences section

of the plea papers, and told him no more than he “could” be deported and “advised

him to consult an immigration lawyer.” (RR, 23-27). Both of those were

insufficient where Appellant was clearly deportable for a controlled substance

offense. See Padilla, 559 U.S. at 369. Moreover, in open court, trial counsel also

did not warn Appellant on the record about the clear immigration consequences of

his plea; nor was there any discussion of the immigration consequences on the

record by the trial court. (RR, 23-24).

Due to trial counsel’s failure to properly advise Appellant, Appellant

pleaded guilty, incorrectly believing that he would still have the opportunity to

Page 28 of 46 remain in the country he had lived in with his entire family since the age of two or

three. The reality of accepting the plea, however, meant that Appellant had been

convicted of a deportable controlled substance offense and thereby subject to

virtually certain removal and mandatory detention. Because his attorney’s advice

did not accurately convey the true risk of removal, the Court of Appeals correctly

found that counsel’s performance was deficient.

iv. Ample attorney resources make it easy to provide accurate advice of the clear immigration consequences to pleading guilty or no-contest to this offense

Amici National Immigration Project and Texas Fair Defense Project, as well

as the National Immigration Project’s members, comprised both of criminal justice

and immigrant advocacy organizations providing resources to the criminal defense

bar, advance and promote the standards of effective attorney performance

embodied in Padilla. Amici train criminal defense counsel to comply with the

duties set forth in Padilla, which include researching potential immigration

consequences and accurately advising noncitizens where the removal

consequences are presumptively mandatory. A defense attorney who fails to

investigate and negotiates a plea resulting in clear removal consequences has not

fulfilled his attorney’s duty to the bar, to the Constitution, or, most importantly, to

his client. As the Court of Appeals found, competent defense counsel would have

Page 29 of 46 advised Appellant that pleading guilty to possession of cocaine would result in

presumptively mandatory deportation.

Before a defense attorney can reasonably determine the removal

consequences of a potential plea, he must engage in some preliminary investigation

and research. See Strickland v. Washington, 466 U.S. 668, 690-691 (1984)

(“counsel has a duty to make reasonable investigations”). The duty to investigate

and research the immigration consequences also applies when “the law is not

succinct and straightforward.” Padilla, 559 U.S. at 367, 369. Before a defense

attorney can reasonably determine that the immigration consequences are too

complex to warrant specific advice, preliminary investigation and research must be

done. See Strickland, 466 U.S. at 690-691. Whether the relevant immigration law

is simple, as in this case, or more complicated, attorneys cannot simply eschew

their duty to research and give generic warnings about immigration consequences.

The professional standards relied on by the Supreme Court in Padilla make

clear that determining the consequences of a particular plea requires investigation

and analysis of the client’s immigration status and criminal history, the specific

criminal statute, and the client’s plea statement. 559 U.S. at 367; see, e.g., Nat’l

Legal Aid and Defender Ass’n, Performance Guidelines for Criminal

Representation § 6.2 (1995) (“In order to develop an overall negotiation plan,

counsel should be fully aware of, and make sure the client is fully aware of . . .

Page 30 of 46 other consequences of conviction such as deportation. . . . In developing a

negotiation strategy, counsel should be completely familiar with . . . the advantages

and disadvantages of each available plea according to the circumstances of the

case.”);2 Amer. Bar Ass’n., ABA Standards for Criminal Justice, Pleas of Guilty

Standard 14-3.2(f), (3d ed. 1999) (“counsel should be familiar with the basic

immigration consequences that flow from different types of guilty pleas, and

should keep this in mind in investigating law and fact and advising the client”).3 see

also State Bar of Texas, Performance Guidelines for Noncapital Criminal Defense

Representation 6.2(B)(13) (2011) (“In order to develop an overall negotiation plan,

counsel should be fully aware of, and make the client fully aware of . .

.[d]eportation and other possible immigration consequences that may result from

the plea”).4

Although not all criminal defense attorneys have complied with their

obligations in this area – as demonstrated by Appellant’s case, a considerable array

of resources has long existed to help defense counsel fulfill these professional

obligations. These resources include a wide range of written treatises, online

2 The National Legal Aid and Defender Association Guidelines are available at www.nlada.org/Defender/ Defender_Standards/Performance_Guidelines. 3 The ABA criminal justice standards are available at www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/pleas_guilty.aut hcheckdam.pdf. 4 The Texas Bar Performance Guidelines are available at www.texasbar.com/Content/NavigationMenu/ForLawyers/Committees/PerformanceGuidelinesfo rNon-CapitalCriminalDefenseRepresentationJanuary2011.pdf. Page 31 of 46 practice manuals, convenient reference guides, and state-specific guides that work

through the laws of many jurisdictions and explain the immigration implications of

each one. See Amici Curiae Brief for the Nat’l Ass’n. of Criminal Defense

Lawyers, et. al. at 32, Padilla, Id. (No. 08-651) (identifying almost 1,000 different

publications and hundreds of training sessions for defenders throughout the nation

on the immigration consequences of criminal convictions). Many of these

publications are available online and free of charge to defense attorneys. Moreover,

criminal and immigration law organizations have engaged in extensive nationwide

efforts to train defense attorneys in immigration issues and to establish and

maintain nationwide, statewide and regional hotlines through which defense

attorneys can obtain case-specific advice. Id. at *25-32.

In particular, defense counsel in Texas have long had access to detailed

resource materials and trainings that explain the specific immigration

consequences of convictions of Texas offenses. For example, this Court funded a

detailed and widely-used manual on this topic that was published in 2003. L.

Coyle, B. Hines & L. Teran, Basics of Immigration Law for Texas Criminal

Defense Attorneys, Texas Criminal Defense Lawyers Association (2003) (“defense

counsel should ensure that a non-citizen defendant is given complete and accurate

information regarding the immigration consequences of a decision in a criminal

Page 32 of 46 case”).5 The State Bar of Texas also published a primer on this topic in 2003. See

B. Bates, Good Ideas Gone Bad: Plea Bargains & Resident Aliens, 66 Tex. Bar J.

878, 882 (Nov. 2003) (“Since deportation is usually the most significant

consequence of the conviction, it requires more, and not less, consideration than

potential jail time or the amount of a fine.”) (emphasis in original).

Also, in 2003, attorney Jodilyn Goodwin developed and made readily

available to defense counsel a reference chart assessing the immigration

consequences of selected Texas offenses. It has been updated annually. Most

recently, Mario Castillo updated and revamped it as part of a law journal article.

See M. Castillo, Immigration Consequences: A Primer for Texas Criminal Defense

Attorneys in Light of Padilla v. Kentucky, 63 Baylor L. Rev. 587 (2011).

In addition, over the last two decades, there have been numerous trainings

for the Texas defense bar on the immigration consequences of criminal

convictions.6 The State Bar of Texas has conducted trainings on the immigration

5 See Appendix A for cover page from materials. The Court may take judicial notice of these materials and trainings which are “not subject to reasonable dispute [and]. . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tex. Rule Evid. 201(b) (2015). See, e.g., Estrada v. State, 313 S.W.3d 274, 287 (2010) (taking judicial notice on appeal of undisputed prison policy). The manual is on file with counsel for amici and available to the court and parties upon request. 6 For example, amicus National Immigration Project helped conduct trainings concerning the immigration consequences of crime in June 1990 in Austin; on February 8, 1991 in El Paso; on February 11, 1994 and November 15, 1996 in San Antonio. See Appendix B for excerpts and cover pages from materials. Additional materials are on file with counsel for amici and available to the court and parties upon request. The Defending Immigrants Project of which National Immigration Project is a member, hosted a training on the Immigration Consequences of Convictions & Sentences in San Antonio on Sept. 24, 2004. Page 33 of 46 consequences of convictions for defense counsel annually since 1999,7 and so has

American Gateways for the last twelve years. Similarly, the University of Texas at

Austin School of Law every year since 2003 has hosted a multi-day Conference on

Immigration Law that features at least one CLE on the immigration consequences

of criminal convictions.8

As noted in Padilla, the determination of whether a crime is a deportable

one can often be made with a straightforward review of the immigration statute.

559 U.S. at 368-369. This was undeniably the case regarding Appellant. Ex parte

Torres, at *5 (“a cursory check of the Immigration and Nationality Act shows” that

possession of cocaine is an “automatically deportable” offense under immigration

law). However, trial counsel here failed to take even the basic step of reading the

immigration statute. (RR, 25-26) (admitting that he had never independently

reviewed the Immigration and Nationality Act). Trial counsel also neglected to

take advantage of the myriad national and state treatises and practice materials

available to him, any of which make plain that possession of cocaine is a

deportable offense. In fact, even a simple Google search would have yielded the

information necessary to analyze Appellant’s case.9

7 See Appendix C for excerpts and cover pages from materials. Additional materials are on file with counsel for amici and available to the court and parties upon request. 8 Detailed materials for 2003 – 2014 University of Texas immigration CLEs are available here, https://utcle.org/materials/index/practice_area_id/20. 9 The search “immigration consequence of possession of cocaine” produces a resource titled “Immigration Consequences of Drug Offenses: Overview and Strategies” presented by expert Page 34 of 46 v. Conclusion As a result, the Court of Appeals correctly held that trial counsel’s failure to

correctly and clearly advise Appellant that his removal is virtually certain

constituted deficient performance under Padilla and Strickland. In the next

section, undersigned counsel will discuss why the Court of Appeals correctly held

that in viewing the totality of the circumstances, Appellant met his burden in

establishing prejudice.

organizations National Association of Criminal Defense Lawyers and the Defending Immigrants Partnership (of which amicus National Immigration Project is a partner). This guide quickly makes plain that a conviction for possession of a federally controlled substance is a deportable offense. See https://www.nacdl.org/uploadedFiles/Content/Legal_Education/Live_CLE/Live_CLE/02_Immig ration_Consequences_Drug_Offenses.pdf (last accessed on January 6, 2015). Page 35 of 46 2. Second Issue presented by Amici Curiae: The Court of Appeals correctly held that in viewing the totality of the circumstances, Appellant met his burden in establishing prejudice.

i. A defendant satisfies the prejudice requirement of Strickland by demonstrating a reasonable probability that, without the ineffective assistance of counsel, he would not have accepted the guilty plea and that it would have been rational to reject the plea. Under Strickland, a defendant proves prejudice by demonstrating that

without the attorney’s error, the outcome of the proceeding at issue would have

been different. 466 U.S. at 695. To demonstrate that the actions of counsel

prejudiced a defendant when he entered a guilty plea, the defendant must show that

it would have been rational under the circumstances to reject that plea in the

absence of counsel’s error. Padilla, 559 U.S. at 372; Roe v. Flore-Ortega, 528 U.S.

470, 480, 486 (2000). A defendant can establish the rational nature of the decision

to reject the plea agreement by establishing a “reasonable probability” that “but for

counsel’s errors” she would have either “insisted on going to trial,” Hill v.

Lockhart, 474 U.S. 52, 59 (1985) because of her desire to avoid deportation, or that

she would have continued to negotiate for an alternative plea that mitigated the

deportation consequence. Missouri v. Frye, 132 S.Ct. 1399, 1408-9 (2012) (Hill

test is not the only test for prejudice); Kovacs v. United States, 744 F.3d 44, 52 (2d

Cir. 2014) (prejudice where showing that defendant would have continued to

negotiate). Strickland mandates that courts employ a case-by-case “totality of the

Page 36 of 46 circumstances” standard for evaluating a defendant’s claim of prejudice. 466 U.S.

at 695. In Appellant’s case, the Court of Appeals determined that given

Appellant’s ties to the United States and the near certainty of deportation that

accompanied his guilty plea, that if Torres had been properly advised of the high

risk of deportation, it would have been rational for him to reject the plea. Torres, at

*11-12.

ii. A defendant does not have to demonstrate that he would have gone to trial; he just needs to demonstrate that it would have been rational to reject the plea agreement.

The state argues that a noncitizen defendant must demonstrate that had he

been aware of the adverse immigration consequences, he would have rejected the

plea bargain and gone to trial. State’s Br. at 14. This requirement that a defendant

show he would have “insisted on going to trial” is the test set forth in Hill v.

Lockhart. 474 U.S. at 59. However, the Supreme Court’s recent jurisprudence

makes clear that the Hill test is not the “sole” test for demonstrating prejudice

arising from plea negotiations. Frye, at 1408-1409. Rather, a defendant can

demonstrate it would have been rational to reject the plea bargain by showing that

he would have gone to trial or that he would have continued to negotiate in hopes

of securing a more immigration-friendly plea deal.

The Supreme Court has had several opportunities in recent years to clarify

the application of the Strickland prejudice requirement to situations where the

Page 37 of 46 “proceeding” at issue is a plea bargain, rather than a trial. In Padilla, as well as in

two more recent cases considering claims of ineffective assistance of counsel

during plea negotiations—Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012); Frye,

132 S.Ct. at 1405—the Court recognized the significance of negotiated pleas to

defendants in the contemporary criminal justice system. The Court noted in Lafler

the sheer number of defendants whose cases end in a plea agreement. 132 S.Ct. at

1388. (stating that 97% of federal convictions and 94% of state convictions are the

result of guilty pleas). Additionally, the Court found that a defendant’s proof of

prejudice differs depending on the context of the case and the plea negotiations. Id.

It is not rigid. Demonstrating prejudice “[i]n the context of pleas [means] a

defendant must show the outcome of the plea process would have been different

with competent advice.” Id. at 1384.

For example, in Frye, the defendant argued that the ineffective assistance of

his counsel caused him to miss out on a plea offer that would have been more

favorable than the outcome he ended up with because his attorney failed to convey

the better offer. In that case, the Court found that to show prejudice the defendant

needed to “demonstrate a reasonable probability that [he] would have accepted the

earlier plea offer had [he] been afforded effective assistance of counsel.” Frye, Id.

at 1409. Additionally, the Court said that the defendant needed to “demonstrate a

reasonable probability the plea would have been entered without the prosecution

Page 38 of 46 canceling it or the trial court refusing to accept it.” “To establish prejudice in this

instance,” the court said, “it is necessary to show a reasonable probability that the

end result of the criminal process would have been more favorable by reason of a

plea to a lesser charges or a sentence of less prison time.” Id.

This Court has also recognized that cases with different contexts require

different prejudice analyses. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim.

App. 2013) (In light of the Supreme Court’s decisions in Lafler and Frye, adopting

the holding that “to establish prejudice in a claim of ineffective assistance of

counsel in which a defendant is not aware of a plea-bargain offer, or rejects a plea-

bargain because of bad legal advice, the applicant must show a reasonable

probability that: (1) he would have accepted the earlier offer if counsel had not

given ineffective assistance; (2) the prosecution would not have withdrawn the

offer; and (3) the trial court would not have refused to accept the plea bargain.”).

The Supreme Court’s recent decisions regarding prejudice in plea

negotiations have shown that the context of the plea negotiation and its outcome

will dictate how a defendant can demonstrate prejudice. Thus, when a noncitizen

defendant shows that ineffective assistance of counsel affected the outcome of her

plea bargaining negotiation, she has demonstrated prejudice. The reviewing court

should look to the particular circumstances of the case to determine what would

have been rational, and should consider all relevant factors. Roe, 528 U.S. at 480.

Page 39 of 46 iii. It is “rational” for a defendant to reject a plea bargain because of its deportation consequences.

It is “rational” for a defendant to reject a plea agreement in favor of pursuing

an alternative plea agreement, or a trial, even at the risk of a more serious

conviction or sentence, because the defendant wants to avoid deportation. See, e.g.,

State v. Sandoval, 249 P.3d 1015, 1021-1023 (Wash. 2011); United States v.

Orocio, 645 F.3d 630, 645 (3d Cir. 2011) (abrogated on retroactivity grounds by

Chaidez v. United States, 133 S.Ct. 1103 (2013)). See also Salazar, 361 S.W.3d at

102 (holding the decision to reject an offer of up to two years in state jail and up to

a $10,000 fine, to face a potentially longer sentence at trial, in order to avoid

deportation would have been rational given defendant’s lack of criminal history

and young age); Leal, 427 S.W.3d at 463 (holding it would have been rational for

defendant to reject the plea if he’d understood the deportation risk where the plea

agreement only reduced the defendant’s sentence by $1,500 and eighty days in

jail).

The test to determine whether rejecting a plea would have been rational is a

totality of the circumstances test per Strickland, 466 U.S. at 695. The reviewing

court should consider all relevant factors to determine what plea decisions would

have been rational for a noncitizen defendant under the test set forth in Padilla. See

also Roe, 528 U.S. at 480. The determination of whether the defendant suffered

prejudice from defense counsel’s failure to advise regarding the immigration

Page 40 of 46 consequences of a plea must include consideration of the defendant’s particular

circumstances informing his desire to remain in the United States, such as length of

residence, family ties in the U.S., lack of ties to the country of origin, and

employment history. Accordingly, courts in Texas, as well as in other

jurisdictions, have determined that it is “rational” for a noncitizen defendant to

reject a plea agreement in order to negotiate another plea agreement or go to trial

because the defendant wants to avoid deportation. Salazar, 361 S.W.3d at 102;

Leal, 427 S.W.3d at 463; Orocio, 645 F.3d at 645 (“it is not at all unreasonable to

go to trial and risk a ten-year sentence and guaranteed removal, but with the chance

of acquittal and the right to remain in the United States, instead of pleading guilty

to an offense that, while not an aggravated felony, carries ‘presumptively

mandatory’ removal consequences”)(abrogated on retroactivity grounds by

Chaidez, 133 S.Ct. 1103); see, e.g., Commonwealth v. Clarke, 949 N.E.2d 892, 903

(Mass. 2011) (Prejudice may be shown through the “presence of ‘special

circumstances’ that support the conclusion that the defendant placed, or would

have placed, particular emphasis on immigration consequences in deciding

whether to plead guilty”).

Texas courts of appeal, as well as courts of last resort in other jurisdictions

have held that when considering whether rejecting a plea bargain would have been

rational, the court should consider the defendant’s desire to avoid deportation. See

Page 41 of 46 Ex parte Cisneros, No. 08-11-00180-CR, 2013 WL 1281995, at *6 (Tex. App. El

Paso, Mar. 28, 2013) (unpublished opinion)(the court weighed the risk of

deportation and the time elapsed between the guilty plea and deportation

proceedings when considering whether rejecting the guilty plea would have been

rational); Denisyuk v. State, 30 A.3d 914, 929-930 (Md. 2011); Orocio, 645 F.3d at

645; Sandoval, 249 P.3d at 1021-1023 (defendant’s permanent resident status

supported court’s determination that it would have been rational for defendant to

risk increased prison time). Such a prejudice inquiry is consistent with the Padilla

court’s recognition that “deportation is an integral part—indeed, sometimes the

most important part—of the penalty that may be imposed on noncitizen defendants

who plead guilty to specified crimes.” 559 U.S. at 364.

Appellate courts in Texas have also found that it would have been “rational”

given a noncitizen defendant’s unique circumstances to reject a plea bargain and

face a trial to avoid deportation. In Salazar, the Eastland Court of Appeals said,

“[i]t would be perfectly rational to take the chance on acquittal at the risk of a

maximum of two years state jail time and a fine of $10,000 rather than enter a

guilty plea that would result in certain deportation, separating [the defendant] from

his family and the opportunities that come from being a legal resident of the United

States.” 361 S.W.3d at 103. See also Leal, 427 S.W.3d at 463.

Page 42 of 46 iv. A defendant need not demonstrate that the case would have resulted in a more favorable outcome, only that he would have rejected the plea bargain in favor of other proceedings. The defendant does not need to demonstrate that the case would have

resulted in a more favorable outcome to demonstrate prejudice. The defendant just

needs to show that a particular proceeding (the plea proceeding in a case like

Appellant’s) would not have happened. This Court has held that a defendant

“need not show that his case would have received a more favorable disposition

had he gone to trial” or that he would have achieved a more favorable plea

agreement if he’d continued to negotiate; only that it would have been rational to

reject the initial plea to pursue a trial or a different plea agreement. Johnson v.

State, 169 S.W.3d 223, 231 (2005) (applying the Strickland analysis to defendant’s

claim that his attorney’s ineffective assistance of counsel prevented him from

testifying). The defendant can show that the decision to reject the guilty plea would

have been rational by showing that he would have proceeded to trial because he

wanted to avoid deportation or that he would have continued to negotiate in an

effort to reach a plea that avoided or mitigated the deportation consequence.

v. The Court of Appeals conducted a proper prejudice inquiry under Padilla

In Appellant’s case, the Court of Appeals correctly conducted a prejudice

inquiry under Strickland and Hill v. Lockhart, as recognized by Padilla. The Court

Page 43 of 46 of Appeals stated that in determining prejudice, it needed to consider the

circumstances of the plea bargain, as well as the impact of the advice Torres did

not receive on his decision to plead guilty. Torres, Id. *11. The Court considered

Appellant’s history in the United States, including that he was a “[legally

permanent resident], a native English speaker, and has resided in the United States

since he was a small child.” Id. The Court also considered the defendant’s

statement in his affidavit that he “accepted the plea deal because trial counsel

advised him that he would not have to go to jail and that the deferred adjudication

meant the charges would eventually be dismissed.” Id. These are all factors that a

court can weigh under Padilla in determining whether it would have been rational

for a defendant to reject a plea bargain in favor of pursuing further negotiation or a

trial. Finally, the Court determined that “[i]n viewing the totality of the

circumstances,” Torres had sufficiently demonstrated that he would not have

accepted the plea if he had understood the risk of deportation. Id.

XII. Conclusion and Prayer

For the reasons stated in this Amici Curiae Brief and in the Appellant’s

Brief, the National Immigration Project and TFDP pray that this Court affirm the

Opinion and judgment of the Eighth Court of Appeals.

Respectfully submitted,

Page 44 of 46 Sejal Zota National Immigration Project of the National Lawyers Guild 14 Beacon Street Suite 602 Boston, Massachusetts 02108 Phone: 617-227-9727 Fax: 617-227-5495 sejal@nipnlg.org North Carolina Bar No. 36535

Susanne Pringle Texas Fair Defense Project 510 South Congress Avenue, Suite 208 Austin, TX 78704 Phone: 512-637-5220 Fax: 512-637-5224 springle@fairdefense.org Texas Bar No. 24083686

Michael Mowla 445 E. FM 1382 #3-718 Cedar Hill, Texas 75104 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680

/s/ Michael Mowla By: Michael Mowla

Page 45 of 46 XIII. Certificate of Service

This certifies that on February 10, 2015, a true and correct copy of this document was served on Lily Stroud, El Paso County Assistant District Attorney, by email to lstroud@epcounty.com, on Lisa McMinn, the State Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov and information@spa.texas.gov, and John Messinger, john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015)

XIV. Certificate of Compliance with Tex. Rule App. Proc. 9.4

This certifies that this document complies with the type-volume limitations because this document is computer-generated and does not exceed 15,000 words. Using the word-count feature of Microsoft Word, the undersigned certifies that this document contains 6,491 words in the document except in the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using 14-point font. See Tex. Rule App. Proc. 9.4 (2015).

Page 46 of 46 APPENDIX A APPENDIX A CONTENTS

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.. --,'"'- , ..

. An Overview an[Ari.~iy'sis by .Lynn Coyle, · ·. Barbara Hiii~s···· -.. •. ·. ·. · · a·n· · ' ·d··.· ..· <.···· - 'A.·· ·.~}>· APPENDIX B APPENDIX B CONTENTS

Immigration Consequences of Criminal Conduct: Drug Convictions, Weapons Offenses, Aggravated Felonies and Crimes Involving Moral Turpitude (June 1990, Austin) ......... Bl

The Immigration Act of 1990: Due Process Deportation Defense, Border Enforcement, Special Relief for Central Americans and Immigration Consequences of Criminal Conduct Under the New Law (Feb. 8, 1991, El Paso) ...................................................... B2

Immigration Consequences of Criminal Conduct (February 11, 1994, San Antonio) .............................................................................................................. B3, B4

Understanding and Planning for the Inunigration Consequences of Criminal Conduct (November 15, 1996, SanAntonio) ..................................................................... B5 NATIONAL""""'""""'""""'"""""~"""""""""'""""'==""""'"""""""""'""""'=============="""""""""""""' CENTRAL AMERICAN REFUGEE IMMIGRATION DEFENSE FUND DRQJECT J.:, _ of the NATIONAL LAWYERS GUILD, INC. VISA DENIAL PROJECT

Immigration Consequences of Criminal Conduct: Drug Convictions, Weapons Offenses, Aggravated Felonies and Crimes Involving Moral Turpitude

Speakers Topics Morning Jose Salvador Tellez Intro and Overview Barbara Hines · Finality of Criminal Conv. Dan Kesselbrenner Crimes of Moral Turpitude Lory Rosenberg Aggravated Felons, etc. Lunch Afternoon Marjorie Meyers Immigration Crimes

Lee Teran JRADS

Kari Converse Post-conviction remedies Denyse Sabagh. Waivers strategy Session

\3 I I

The Immigration Act of 1990: '· Due Process, Deportation Defense, Border Enforcement, Special Relief for Central Americans and Immigration Consequences of Criminal Conduct Under the New law

a skills seminar presented by

the National Immigration Project of the National Lawyers Guild and the Mexican American Bar Association of El Paso

Friday, February 8, 1991

Airport Hilton El Paso, Texas -------'----PRE-REGISTRATION F O R M - - - - - - - - - - REGISTRATION FEES To ensure that you receive supplemental materials on the day of the seminar, please return this form by February 4, 1994. D Attorney members of NLG and of minority bar associations $85 ($100 at door) D Other attorneys• $125 ($140 at door) D NLG law students, legal advocates $65 ($80 at door) FIRM OR EMPLOY~--------------- and non-profit staff •Join the Guild now and qualify for the NLG member fee. Make a separate check for $30 payabfe to the National Lawyers Guild. STREET A D D R E S S - - - - - - - - - - - - - - - - /mm/graNon ·Law and Climes wHI serve es the primeJ)I course malerials. Please bring your copy to the seminar or contact the Immigration Project C I T Y - - - - - - - - - - - STATE --.-ZIP--~ about ordering the book In advance from the publisher at a special discount price. Supplemental materials ere Included In the registration fee. PHONE _ _ _ _ _ _ _ _ _ F A X - - - - - - - - Make seminar check payable to National Immigration Project. Return to · SklJ/s Seminar, National Immigration Project, 14 Beacon Street, Suite 506, Boston, MA 02108. BAR NO: (for CLE pUIJlOses)

For further Information, call: National Immigration Project (617) 227-9727

·I 801<0 •u••mpussew 'uo1soa 1 90> •1Jns 'l••llS uoo••a vi

.·- ~~~~~~1i~~£1 ==================;JVNOIJ.VN

.,.·. __ c ~: ~~--~~ •• "·· - - - - - IMMIGRATION CONSEQUENCES OF CRIMINAL CONDUCT-----

Congress is contemplating sweeping changes to immigration and criminal laws that will affect the foreign born in criminal proceedings. In this full-day seminar, national and local experts will analyze recent legislative developments, exruriine how criminal conduct affects non-citizens, and provide strategies for avoiding adverse immigration consequences and for obtaining post-conviction relief.

I. Introduction and Overview of Recent Developments V. Immigration Crimes: Smuggling, Transporting, Entry & Reentry II. Finality of Criminal Convictions VI. Post-Conviction Remedies: Statutory and Federal Issues III. Crimes of Moral Turpitude VII. Waivers IV. Aggravated Felons, Drugs and Current Legislation VIII. Strategy Session on Hypothetical Cases

REGISTRATION: 8:30 - 9:00 A.M. PROGRAM: 9:00 A.M. - 5:00 P.M.

EMILIO "CHITO" DAVILA, JR. has been in private practice /JJOSE MORENO is the Director of Diocesan Migrant and in Laredo. Texas since 1980. Formerly an Assistant U.S...: ·.. Refugee S_ervices in El Paso and a former staff attorney with ·Attorney for the Southern District of Texas, he is Board Certiljed. Te~as'-Rllral Legal Aid. in Criminal Law by the Texas Board of Legal Speoiniizatipn.·,. L""o·"·RY.,.~R;O·:.ENBERG · th Dir t fth Le alA · c .; • .-', ..,,,.· . ~· ::1 •. 1s e ec or a e g ctlon enter .· - of. l)je'Anioricnn Immigration Law Foundation in Washington, BARBARA HINES is Co-Director for the Lawyers Con'niiittee -D~c. ifud was an advisQr to President Clinton's transition team for Civil Rights Under Law for Texas, Inunigrant and Refugee for INS. She is the author of the Fair Hearings Pleadings Manual, Rights Project, and was an advisor to President Clinton's co-author of Winning Waivers and lni111igration--Law and Crimes. transition team for INS. She is in private practice in Au.stin, and a contributor to Immigration Law and Defense. She received Texas, and is Board Certified in Immigration and Nationality Law the 1988 AILA Edith Lowenstein Award for Excellence in by the Texas Board of Legal Specialization. She received the 1992 Advancing the Practice of Immigration Law and is a member of American Immigration Lawyers Association's (AILA) Jack the Steering Committee of the National Immigration Project. Wasserman Memorial Award for Excellence in Litigation and is a member of the National Immigration Project. ROBERT SHIVERS practices with the law firm of Shivers & Shivers in San Antonio, Texas, and is Board Certified in DAN KESSELBRENNER is Director of the National Immigration and Nationality Law by the Texas Board of Legal Immigration Project and was an advisor to President Clinton~s Specialization. He is an instructor in immigration law· at transition team for INS. He is co-author of Immigration Law and St. Mary's University Law School, and is a member of the Crimes, published by Clark Boardman Callaghan. National Immigration Project. LEE TERAN is Director of the St. Mary's University Law MARJORIE A. MEVERS practices with the law firm of Bennett & School Immigration Clinic and is Board Certified in Immigration . Secrest in Houston, Texas, specializing in the defense of and NationOJity Law by the Texas Board of Legal Specialization. individuals accused of criminal conduct, She was formerly an She received the 1992 AILA Jack Wasserman Memorial Award · Assistant Federal Public Defender and has written and lectured for Excellence in Litigation and is a member of the Steering extensively on federal criminal Jaw, Committee of the Nationnl Immigration Project.

Applicatlc;ms for Continuing Legal Education Credit are pending. All proceeds of the skills seminar support the work of the National Immigration Project, a network of lawyers and legal and community workers engaged in immigration law and practice. The Project works ta diminish discrimination against the foreign born and to preserve, defend and extend the rights of all immigrants in the United States. The skills seminar will take place in conjunction with the Texoma regional conference of the National Lawyers Guild on February 12, 1994. The theme ofthe conference is Law In the Public Interest: Which Public? Whose Interest? Workshops inc/11de the Onmibus Crime Act, the Post-NAFTA Agenda, Employment Law & Civil Rights, Organizing the Plaintiffs Bar, and P11blic /11terest Law Careers. We encourage you to "attend the entire confere11ce as well as the seminar. For 1nore information about the seniinar or the co11f~rence. call the Immigration Project at (617) 227-9727. The site is wheelchair accesslble. I . . . .

:. .. . . .

I . THE SAN ANTONIO CHAPTER . . . . .OF THE MEXICAN AMERICAN BAR ASSOCIATION . . . ...··A.NJ) .•.. ·.. ·.. ·· . . . 1..• THE LAWYERS' COMMiTTEEFOR CIVIL RIGHTS. .. . . UNDERLAWOFTEXAS .··.·· .. · . I IMMIGMNT & REFUGEERIGITTS PR()JECT

I .... ·,·····

I.. . . PRESENT A. SEMINAR ON: . I : .. .. .. - '. . . , • . •'. i . - .. .

. ...

I '. ·... •. UNDER.STANilINGANJlPLANNlNG. 1· ·,.. ·.·.· ···.· •...·.. · ·: .. FOR·rHE:····. : . ·. - . ... : ~lGRATIO~ CONSEQUENCES· t. ·.. -

. · OF CRIMINAL CONDUCT •

..... •• • • •• •• •• ·-. >

I ,· ' . ,. i)]\/Jinimj2:ing the Effecf.ofCrim~na(CondU.ct · I - . ; .· •. ..9n ·a cli~ntis . . .... .- Immigration . . ··.· st~tqs~'' - . . .·. - :.... '

I : ·,·· . .. ;, . '·,

.. . '

...·. ... ·- . .-·· ...

·.. ·:-. :_

· M:~~ca~ Alllerica'acidturitl Center · ·· · · · · ·Slln Arit~ni9, T~xas · · · · ...... is, · . · Noveniber .-- .. i996 I . . ._, . . - _.- ~ . - . .. :·

. 1·... ·· .. ..,. ..-.... . . ' ... · . . . ~.

r .· . ... - .i

I:· ~ . . :-. APPENDIX C APPENDIX C CONTENTS

Criminal Acts and the Consequences for Foreign Nationals, Advanced Criminal Law Course (State Bar of Texas, July 26, 1999, Dallas) .......................................................... Cl

Criminal Acts and the Consequences for Foreign Nationals, Advanced Criminal Law Course (State Bar of Texas, July 18, 2000, San Antonio) ................................................ C3

Criminal Acts and the Consequences for Foreign Nationals, Advanced Criminal Law Course (State Bar of Texas, July 16-19, 2001, Corpus Christi) ....................................... C5

Criminal Acts and the Consequences for Foreign Nationals, Advanced Criminal Law Course (State Bar of Texas, July 22-25, 2002, Houston) ................................................. C7

Federal Crimes and Immigration, Advanced Criminal Law Course (State Bar of Texas, July 28-31, 2003) .............................................................................................................. C9

Immigration Consequences of Crime, Advanced Criminal Law Course (State Bar of Texas, July 25, 2004) ...................................................................................................... ClO

Immigration Consequences of Criminal Conduct, Advanced Criminal Law Course (State Bar of Texas, July 18-21, 2005, Corpus Christi) ... ,........................................................ Cl 1

Immigration Consequences of Criminal Convictions: What You Don't Know Can Hmt You, Advanced Criminal Law Course (State Bar of Texas, July 28-31, 2008, San Antonio) ............................................................................................ C13

Immigration Consequences of Criminal Convictions, Advanced Criminal Law Course (State Bar of Texas, July 20-23, 2009, Dallas) ............................................................... Cl5

Immigration Issues, Advanced Criminal Law Course (State Bar of Texas, July 26-29, 2010, San Antonio) ......................................................................................................... Cl 7

Family Based Immigration, Criminal Acts, and the Consequences for Foreign Nationals, Advanced Criminal Law Course (State Bar of Texas, July 18-21, 2011, Houston) ....... Cl8 adv cnn law title & toe http://www.texasbarcle.com/Materials/Events/1384/30528.httn

Criminal Acts and the Consequences

for Foreign Nationals

by

Thomas Esparza, Jr. Attorney at Law*

Elizabeth Martinez, Attorney at Law**

Ajay Choudhary***

Thomas Esparza, Jr. A Professional Corporation

LaMadrid Building

1811 South First Street

Austin, Texas 78704

I of6 Cl 3/14/2012 11:28 Alv adv crm law title & toe http://www.texasbarcle.com/Materials/Events/ 13 84/3 0528 .him

Advanced Criminal Law Course

July 26-29, 1998

Dallas, Texas

July 26, 1999

F

Tho1nas Esparza, Jr., Attorney at Law A Professional Corporation

La Madiid Building, 1811 So. 1st., Austin, Texas 78704

512-441-00621512-441-0725

EDUCATION

• McAllen High School-1970.

•Texas A & M University-1974.

• University of Texas, School of Law-1977. Edited weekly/monthly papers ..

LEGAL AND PROFESSIONAL EXPERIENCE

•Licensed to practice November, 1977.

• Board Certified Specialist Immigration and Nationality Law October 1985 by the Texas Board of Legalization; renewed in 1990 and 1995.

•Waco-McLennan County Legal Aid-1977-1978.

• Private Practice in Austin, Texas, 1978-present.

•Capital Area Mexican-American Lawyers, President, 1988-1989.

•State Bar Committee-Laws Relating to Immigration, 1985-1988 & 1998 to present.

• Member, State Bar College-1997 to present.

2 of6 3/14/2012 11:28 A1 Advanced Crim la\v seminar http://www.texasbarcle.com/Materials/Events/1393/30527.htm

Criminal Acts

and the Consequences for Foreign Nationals

Thomas Esparza, Jr. Attorney at Law· with help from

Elizabeth Martinez, LaSalle County Attorney ••

Jonathan Love, INS Assistant District Council, San Antonio, Texas"•

1 of7 3/14/2012 11:26 Alv Advanced Crim la\v seminar http://www.texasbarcle.com/Materials/Events/1393/30527.htrr

San Antonio, Texas

July 18, 2000 , , Edition

Chapter 11

Table of Contents

I. Introduction I

II. Conviction ru1d Sentencing 2

A. Why is the term "conviction" importilllt for Immigration Purposes? 2

B. What was not a conviction? 2

C. Congress Chilllges the Rules 2

D. Once Convicted, Stay Convicted 2

E. "Time in Jail " is not effected by suspension of the imposition of a sentence. 3

F. Application date of the revised definition of conviction is retroactive 4

III. Criminal Classes of aliens ineligible for visas or admission. 4

(A) Conviction of certain crimes. 4

(B) Multiple criminal convictions. 4

(C) Controlled substru1ce traffickers. 5

(D) Prostitution aJld commercialized vice. 5

(E) Certain aliens involved in serious crinllnal activity who have asse1ted immunity from prosecution. 5

IV. Grounds for Removal 6

A. Criminal aJld related grounds. 6

2 of? 3/14/2012 11:26 Al\ CRJMINAL ACTS http://www.texasbarcle.com/Materials/Events/l 398/30519.htn

I of8 c.s 3/14/201211:24Al\I CRIMINAL ACTS http:llwww.texasbarcle.com/Materials/Eventsll 398/30519 .htn

July 16 - 19, 2001

Corpus Christi, Texas

CHAPTER17

With help from:

Elizabeth Martinez, LaSalle County Attorney **

Jonathan Love, INS Assistant District Council, San Antonio, Texas***

Thomas Esparza, Jr., Attorney at Law,

A Professional Corporation

La Madrid Building, 1811 So. !st.

•University of Texas, School ofLaw-1977. Edited weekly/monthly papers.

•Member of the American Innnigration Lawyers Association since 1980

• Board Certified Specialist - Innnigration and Nationality Law, October 1985,

2 ofS 311412012 11:24 AM Advanced Crim law sen1inar http://www.tcxasbarclc.com/Materials/Events/ 13 99/3 0516 .htr

CRIMINAL ACTS AND THE CONSEQUENCES FOR

FOREIGN NATIONALS

Thomas Esparza, Jr. Attorney at Law* with help from

Elizabeth Martinez LaSalle County Attorney **

Jonathan Love, INS Assistant District Council, San Antonio, TexaS***

I of 6 3114/2012 11:21 AM Advanced Crin1 la\v seminar http://www.texasbarcle.com/Materials/Events/l 3 99/3 0516.htr

State Bar of Texas

July 22 - 25, 2002

Houston, Texas

Chapter 21

I. Introduction 1

II. Conviction and Sentencing 2

A. What was not a conviction? 2 B. Congress Changes the Rules 2 C. Once Convicted, Always Convicted 3 D. "Time in Jail" is not affected by suspension of imposition of a sentence 4 E. Retroactive Application date of the revised definition of conviction. 4

III. Criminal Classes of aliens ineligible for visas or admission. 4

A. Conviction of certain crimes. 5 B. Multiple criminal convictions. 5 C. Controlled substance traffickers. 5 D. Prostitution and commercialized vice. 5 E. Ce1tain aliens who have asserted immunity from prosecution. 5 F. Waiver Authorized for certain aliens. 6

IV. Grounds for Removal 7

2 of6 3/14/2012 11:21 AM FEDERAL CRIMES AND IMMIGRATION http://www.texasbarcle.com/Materials/Events/2711/36320.htm

FEDERAL CRIMES AND IMMIGRATION

JOSE I. GONZALEZ-FALLA Supervisory Asst. Federal Public Defender Corpus Christi, Texas (361) 888-3532

State Bar of Texas 29TH ANNUAL ADVANCED CRIMINAL LAW COURSE July 28-31, 2003

I of7 3/14/2012 ll:l9 AM TexasBarCLE - Texas Continuing Legal Education http://www.texasbarcle.com/CLE/OLSearchResults.asp?sPage=8&v..

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I of I ClO 3/14/2012 ll: 15 AM IMMJGRATION CONSEQUENCES OF CRIMINAL CONDUCT http://www.texasbarcle.com/Materials/Events/4480/86115 .htn

IMMIGRATION CONSEQUENCES OF CRIMINAL CONDUCT

JOSEPH A. VAIL University of Houston Law Center hnmigration Clinic

State Bar of Texas 31 8T ANNUAL ADVANCED CRIMINAL LAW COURSE

1 of 5 c ll 3/14/2012 11:09 AM IMMIGRATION CONSEQUENCES OF CRJMINAL CONDUCT http://www.texasbarcle.com/Materials/Events/4480186115 .htm

July 18-21, 2005 Corpus Christi

CHAPTER30

cl 2.- 2 of5 311412012 11 :09 AM In1migration Consequences OfCrin1inal Convictions http://www.texasbarcle.com/Mate1ials/Events/6709/73446.htir

IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS: WHAT YOU DON'T KNOW CAN HURT YOU

JOSEPH REINA AND BRIAN K. BATES Reina & Bates Im1nigration Law Group

DALLAS 1120 EMPIRE CENTRAL PLACE DALLAS, TEXAS 75247 TELEPHONE: 214 905 9100 FACSIMILE: 214 905 9510

IRVING 6341 CAMPUS CIRCLE om.VE EAST IRVING, TEXAS 75063 TELEPHONE: 9727566000 FACSIMILE: 972 756 6007

CHICAGO 123 SOUTH ASHLAND AVENUE CHICAGO, ILLIONOJS 60607 TELEPHONE: 3117331100 FACSIMILE: 312 733 om

AUSTIN 701 llRAZOS, SUITE 500-2088 AUSI'IN, TEXAS 78701 TELEPHONE: 512 3209190 FACSU.llLE: 512 334 6001

HOUSTON - WESTI'ARK 6260 WESTPARK DRJVE, SUITE 110 HOUSrON, TEXAS 77060 TELEPHONE: 281820 6100

HOUSTON - NORTIIPOINT 123 NORTI-IPOINT DRIVE, SUITE 190 HOUSTON, TEXAS 77060 TELEPHONE: 281 558 9500 FACSIMIUE: 281 448 6767

I of5 3/14/2012 II :03 AM l111n1igration Consequences Of Criminal Convictions http://www.texasbarcle.com/Materials/Events/6709/73446.htrr

AMARILLO 1125.W. 8TH AVENUE, SUITE 301~001 A.MARIL LO, TEXAS 79101 TELEPHONE: 806 350 7·120 FACSIMILE: 806 350 7421

State Bar of Texas 34th ANNUAL ADVANCED CRIMINAL LAW COURSE July 28-31, 2008 San Antonio

CHAPTER26

2 of5 CH 3/14/2012 11:03 AM IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS http://www.texasbarcle.com/Materials/Events/8208/1II593.htn

IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS

Presented by:

MARINA GARCIA MARMOLEJO, San Antonio Tho1npson & Knight LLP

Written by:

MARINA GARCIA MARMOLEJO Thompson & Knight LLP 4040 Broadway, Ste 615 San Antonio, Texas 78209 (210) 225-2285

DANIEL SERNA Serna & Associates PLLC 20985 IH 10 West San Antonio, TX 78257 (210) 228-0095

Recent Legislative Developments DAVID LAWRENCE

I of 4 3114/2012 11 :02 AM IMMIGRATION CONSEQUENCES OF CJUM!NAL CONVICTIONS http://www.texasbarcle.com/Materials/Events/8208/1II593.hm

State Bar of Texas 35th ANNUAL ADVANCED CRIMINAL LAW COURSE July 20 - 23, 2009 Dallas

CHAPTER10

I. INTRODUCTION ...................................................................................................................................... I

II. OVERVIEW OF IMMIGRATION PROCEEDINGS ................................................................................... 1 A. BURDEN OF PROOF FOR DEPORTABILITY. ................................................................................ I B. RIGHT TO COUNSEL, BUT NOT APPOINTED COUNSEL ............................................................ . 1

III. ADMINISTRATION OF IMMIGRATION LAW. ....................................................................................... 1

IV. IMMIGRATION CONSEQUENCES FOR CRIMINAL ALIENS ................................................................ 2 A. DEPORTATION ................................................................................................................................. 2 B. INADMISSIBILITY. ........................................................................................................................... 3 C. DENIAL OF DISCRETIONARY RELIEF ........................................................................... 3 D. NATURALIZATION RESTRICTIONS ............................................................................................... 3

V. DEFINITION OF "CONVICTION" AND "SENTENCE" FOR IMMIGRATION PURPOSES ................... . 3 A. STATUTORY DEFINJTJON-"CONVICTION" UNDER 8 U.S.C.§ 1101 (a)(48)(A) ........................... . 3 1. "Conviction" Prior to Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) .................................................................................................................. 4 2. "Conviction" Defined Post IIRIRA ................................................................................................ . 4 3. Appeals of Convictions Pre-IIRIRA and Post-IIRIRA .................................................................... . 5 4. Pre-trial Diversion ......................................................................................................................... 6 5. ''No contest" Pleas ........................................................................................................................ 6 6. Juvenile Dispositions ...................................................................................................................... 6 B. STATUTORY DEFINITION-"SENTENCE" UNDER 8 U.S.C.§ 1101 (a)(48)(B) ................................ . 6 1. Vacated Sentences ........................................................................................................................ 7 2. Probation on Probated Sentences ................................................................................................... . 7 3. Deferred Adjudication .................................................................................................................... 7 4. Dismissals ..................................................................................................................................... 7

VI. AGGRAVATED FELONIES ...................................................................................................................... 7 A. OVERVIEW. ...................................................................................................................................... 7 B. AGGRAVATED FELONIES TRIGGERED BY ONE-YEAR TERM OF INCARCERATION ............. .

2 of4 3/14/2012 11:02 AM IMMIGRATION ISSUES

Written and Presented by: JODILYN M. GOODWIN, Harlingen Law Office of Jodi Goodwin

Presented by: DOUGLAS M. O'BRIEN, Houston Moen Cain & O'Brien

State Bar of Texas 36t11 ANNUAL ADVAN CED CRIMINAL LAW COURSE July 26-29, 2010 San Antonio

CHAPTER36

Cll FAMILY BASED IMMIGRATION, CRIMINAL ACTS, AND THE CONSEQUENCES FOR FOREIGN NATIONALS

Presenter THOMAS ESPARZA, JR. -~ Attorney at Law· Thomas Esparza, Jr. A Professional Corporation LaMadrid Building 1811 South First Street Austin, Texas 78704 512-441-0062 tom@to1nesparza.c01n

Co-Author JACQUELINE L. WATSON Thmnas Esparza, Jr. A Professional Corporation LaMadrid Building 1811 South First Street Austin, Texas 78704 512-441-0062 Jackie@tmnesparza.com

State Bar of Texas 37th ANNUAL ADVANCED CRIMINAL LAW COURSE July 18-21, 2011 Houston

CHAPTER33

cl~ APPENDIX D | | Neutral As of: February 7, 2015 8:23 PM EST

Ex parte Torres Court of Appeals of Texas, Eighth District, El Paso March 21, 2014, Decided No. 08-12-00244-CR

Reporter 2014 Tex. App. LEXIS 3168; 2014 WL 1168929

EX PARTE MANUEL TORRES,

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.

Subsequent History: Petition for discretionary review refused by Ex parte Torres, 2014 Tex. Crim. App. LEXIS 1372 (Tex. Crim. App., Sept. 17, 2014)

Prior History: [*1] Appeal from the 34th Judicial District Court of El Paso, Texas. (TC# 20110D01278).

Core Terms

deportable, immigration, parte, removal, defense counsel, guilty plea, aggravated felony, immigration consequences, pet, retroactivity, charges, offenses, trial court, ineffective, designated, grounds, removal proceedings, alien, trial counsel, automatic, deferred, deportation proceedings, habeas corpus, plea hearing, mandatory, felonies, advice, courts, papers

Case Summary

Overview

HOLDINGS: [1]-Counsel’s admission that he did not explicitly state that defendant’s post-guilty plea removal was a legal certainty and his admitted failure to research which offenses constituted aggravated felonies under the Immigration and Nationality Act constituted ineffective assistance under the Sixth Amendment in defendant’s case of possession of a controlled substance and robbery; [2]-Defendant was prejudiced because he claimed that had he received proper counsel, he would have delayed the plea until he was eligible for cancellation of removal and sought an immigration-neutral plea agreement or gone to trial.

Outcome

Judgment reversed and judgment was rendered granting the writ of habeas corpus. 2014 Tex. App. LEXIS 3168, *1

LexisNexis® Headnotes

Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > General Overview Criminal Law & Procedure > ... > Appeals > Standards of Review > General Overview Evidence > Burdens of Proof > Allocation Evidence > Burdens of Proof > Preponderance of Evidence

HN1 The applicant in a habeas corpus proceeding bears the burden of proving he is entitled to post-conviction relief by a preponderance of the evidence. An appellate court reviews the trial court’s grant or denial of habeas corpus for abuse of discretion, viewing the facts in the light most favorable to the trial court’s ruling and deferring to the trial court in matters involving a determination of credibility or demeanor.

Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel Criminal Law & Procedure > ... > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel Evidence > Burdens of Proof > Preponderance of Evidence

HN2 The Sixth Amendment provides a defendant with the constitutional right to effective assistance of counsel. Counsel renders constitutionally ineffective assistance warranting reversal where (1) his performance fell below an objective standard of reasonableness, and (2) that the defendant suffered prejudice, i.e., that there was a reasonable probability that but for the actions of defense counsel, the outcome of proceedings would be different. On habeas review, an applicant must establish both Strickland prongs by a preponderance of the evidence.

Criminal Law & Procedure > ... > Counsel > Effective Assistance of Counsel > Pleas Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > General Overview

HN3 In discharging his duty to effectively represent his client at the pleading stage, defense counsel must advise a non-citizen client of the adverse immigration consequences a guilty plea may carry. The scope of the Padilla duty hinges on how likely it is that a plea agreement will result in removal proceedings. When the law is not succinct and straightforward on that issue, defense counsel discharges his Padilla duties by advising a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. However, when the deportation consequence is truly clear the duty to give correct advice is equally clear.

Criminal Law & Procedure > ... > Counsel > Effective Assistance of Counsel > Pleas Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > General Overview

HN4 Texas courts applying Padilla have held that where the immigration consequences of a plea are a ″virtual certainty,″ defense counsel has a mandatory duty to explicitly state what those consequences will be. Merely stating that removal proceedings could ensue after a guilty plea to an aggravated felony or drug offense is ineffective in mandatory removal cases; counsel must clearly state that pleading to the offense will result in removal.

Page 2 of 10 2014 Tex. App. LEXIS 3168, *1

Criminal Law & Procedure > ... > Controlled Substances > Possession > General Overview Criminal Law & Procedure > ... > Crimes Against Persons > Robbery > General Overview Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > Controlled Substance Offenses Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > Enumerated Statutory Crimes

HN5 Robbery and possession of cocaine are both automatically deportable offenses under immigration law. 8 U.S.C.S. § 1101(a)(43)(G) (2005).

Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > General Overview

HN6 Deferred adjudication has the same effect for immigration purposes as a conviction.

Criminal Law & Procedure > ... > Counsel > Effective Assistance of Counsel > Pleas Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > General Overview

HN7 Counsel’s constitutional duty to inform his client that his removal is a virtual legal certainty does not wane merely because counsel believes the probability of actual removal is uncertain based on his past experience and the United States Department of Homeland Security, Immigration and Customs Enforcement division’s enforcement priorities. Nor is counsel’s ignorance of mandatory deportation consequences under the Immigration and Nationality Act excused by immigration law’s complexity, as the Court of Appeals of Texas has held counsel accountable for knowledge, or the ability to attain knowledge, of relevant legal matters that are neither novel nor unsettled. The list of deportable offenses, although extensive, is clearly set out at 8 U.S.C.S. § 1227(a), and the list of 21 types of aggravated felonies triggering automatic removal is set out at 8 U.S.C.S. § 1101(a)(43). Padilla imposes a duty on defense counsel to know what these crimes are and to advise a client that a plea to any of these crimes will make him or her presumptively deportable.

Criminal Law & Procedure > ... > Counsel > Effective Assistance of Counsel > Pleas Immigration Law > ... > Grounds for Deportation & Removal > Criminal Activity > General Overview

HN8 Deprivation of a trial stemming from a Padilla violation is a structural defect, which amounts to a serious denial of the entire judicial proceeding itself, and it demands a presumption of prejudice. The focus of the prejudice inquiry is whether the defendant was deprived of a particular proceeding by counsel’s deficient performance, not whether the outcome of that proceeding would have been favorable to the defendant. Therefore, the defendant must demonstrate that but for counsel’s performance, he would have availed himself of the proceeding in question. In assessing prejudice, a court is to consider the circumstances surrounding the guilty plea and the gravity of the advice that the defendant did not receive as it pertained to the defendant’s plea determination.

Judges: Before McClure, C.J., Rivera, and Rodriguez, JJ.

Opinion by: YVONNE T. RODRIGUEZ

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Opinion Manuel Torres appeals the trial court’s denial of his writ of habeas corpus application seeking reversal of his guilty plea to one count of felony possession of a controlled substance and one count of robbery. In his sole issue on habeas review, Appellant, a Mexican national with lawful permanent resident (″LPR″) status in the United States, complains that his trial counsel rendered constitutionally ineffective assistance by telling him that pleading guilty to the charges ″could result in his deportation″ instead of informing him that under the Immigration and Nationality Act, those offenses constituted aggravated felonies subjecting him to near-certain automatic removal1 from the United States. We reverse and render.

BACKGROUND Prior to his arrest on the charges at issue in this appeal, Appellant was a resident alien living in El Paso, Texas. He entered the United States presumably without inspection at the age of two or three, when his parents brought him into the country. Appellant has spent most of his life in the United States and is a native English speaker. On May 24, [*3] 2006, Appellant received LPR status, according to his affidavit. Appellant did not testify at the habeas corpus hearing because he was in United States Department of Homeland Security, Immigration and Customs Enforcement division (″ICE″) custody.2 However, in an affidavit submitted to the trial court as part of his habeas application, Appellant stated that he met with an employee from the El Paso County Public Defender’s Office while in custody following his arrest, and that he gave her his ″biographic information, education, legal status in the country, and the facts of the case.″ He later met with an attorney from the Public Defender’s Officer, who Appellant contended explained the possibility of probation to him, but never the immigration consequences of a plea. After meeting with the original intake employee again near his court date, Appellant finally met with a second attorney, his assigned defense counsel for the case, who ″explained how probation works and also about the alternative of doing time on the cocaine charges.″ At a bond hearing, Appellant received bond and his attorney told him that his father and brother were responsible for ensuring Appellant complied with the bond. [*4] However, Torres continued to be detained until he made restitution for an insufficient check he had written in New Mexico. Appellant said that his attorney visited him during the detention, and ″said everything was o.k. and not to worry and that I was going to get deferred probation, and explained to me that it could eventually 1 Although the case law refers to the procedure by which an alien is expelled from the United States as ″deportation,″ see, e.g., Ex parte De Los Reyes, 392 S.W.3d 675, 678 (Tex.Crim.App. 2013)(″the written admonishment was sufficient to give Applicant notice that a plea of guilty could have resulted in deportation.″), such [*2] proceedings commenced after April 1, 1997, are properly referred to as removal proceedings. See Glossary: Deportation, U.S. DEP’T OF HOMELAND SEC., U.S. CITIZENSHIP & IMMIGRATION SERVS., http://www.uscis.gov/ tools/glossary/deportation (last visited Feb. 2, 2014)(noting that Congress consolidated deportation proceedings (which expel an alien already present in the United States) and exclusion proceedings (designed to deny an alien entry at the United States border) into one general catch-all proceeding now known as ″removal″). ″Deportability″ is a legal state rendering an ″alien[] in and admitted to the United States . . . subject to removal[.]″ Id. For purposes of harmonizing legal terminology between the courts of this State and the immigration courts, we refer to deportation proceedings as removal proceedings in this opinion. 2 ″[W]hile a state court may entertain a hearing on an applicant’s habeas-corpus application filed under Chapter 11 of the Texas Code of Criminal Procedure, it has no authority to compel an inmate’s release from federal custody for purposes of attending that hearing.″ In re State of Texas, 08-10-00059-CR, 2010 Tex. App. LEXIS 1193, 2010 WL 597138 (Tex.App.--El Paso Feb. 19, 2010, no pet.)(orig. proceeding, not designated for publication).

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be taken off my record.″ Appellant maintained that he did not meet with his attorney at any time from the date of his release until the date of plea hearing. Appellant stated that shortly before the plea hearing, he again met with his attorney, who told him ″about deferred probation for ten years for the robbery charge and 5 years for possession of cocaine charge,″ with a burglary and marijuana possession charge to be dismissed. Appellant further stated [*5] that ″I never went over the plea documents with [my] attorney . . . he just told me to sign them and I did.″

Several days after the plea hearing, Appellant was re-arrested on separate charges. Appellant said that his attorney told him that he would try to get the charges he was being held on consolidated into the charges he previously pled to. When Appellant asked his attorney ″what ICE was because [he] had been told that [he] had an ICE hold,″ his attorney explained that immigration authorities had placed the hold ″because [he] had pleaded″ and advised him to contact an immigration attorney. Appellant maintained that ″the first and only time that [his] attorney . . . ever told [him] about an problem with immigration″ was during this meeting, after he had pleaded guilty to the charges.

At the habeas hearing, the State called Appellant’s defense attorney who handled the plea. Defense counsel testified that he has been an attorney specializing in criminal law since 1985, and that he had been assigned Appellant’s case by the Public Defender’s Office. Defense counsel confirmed that Appellant met with an intake worker and another attorney before he was assigned to the case. Defense counsel [*6] also testified that he had met with Appellant once at the bond hearing, once to discuss the bad check hold arising from a purportedly erroneous extradition attempt from New Mexico, once at the plea hearing, and once after his plea relating to his second arrest on other charges. Defense counsel disputed Appellant’s contention that he ″put the plea papers in front of him and just said, Sign them,″ maintaining that he went through the plea papers ″paragraph by paragraph″ to ensure that Appellant got ″the gist of″ each paragraph, that he discussed Appellant’s immigration status with him at the plea hearing and probably during the first meeting, and that Appellant was ″definitely . . . aware of the possibility of immigration consequences of pleading guilty to two felony offenses.″ He stated that his specific advice to Appellant was to hire an immigration attorney to warn him of the possible removal consequences.

On cross-examination, defense counsel admitted that he spent between ten and fifteen minutes reviewing the plea papers with Appellant and ″[p]robably less than a minute″ explaining the immigration consequences section of the plea papers. Defense counsel acknowledged that the trial [*7] court did not admonish Appellant on the record about immigration consequences of the plea. He also admitted that he had never independently reviewed the Immigration and Nationality Act and did not know what constituted deportable offenses under the Act other than what he learned ″at seminars.″ Appellate counsel also questioned defense counsel on the specific advice he gave Appellant and on defense counsel’s knowledge of the specific consequences of pleading guilty to an aggravated felony:

Q. And you testified that your specific instruction to him was, Seek immigration counsel; you could be deported because these are felonies. A. Yes. I didn’t make any distinction between the robbery and the possession case because my understanding of the law is they’re both considered aggravated felonies and it could result in his deportation, either one on its own. ...

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Q. So, therefore, you are aware that they were — if they were aggravated felonies, that he is for certain going to be in deportation proceedings? A. That has not been my experience. Q. That has not been your experience? A. No. I see lots of people plead to aggravated felonies and don’t end up in deportation proceedings. ... Q. [Y]ou are [*8] aware that an aggravated felony is defined as a crime that is deportable automatically, that person is deportable if they plead guilty or convicted [sic] of that offense? A. That’s what — you know, I’m not sure what the distinction you’re making is because certainly that’s the definition of these kinds of felonies or misdemeanors that can get you deported, but not everyone who pleads guilty to those offenses gets deported. Q. But that wasn’t my question. ... Q. [Y]our analysis of an aggravated felony, then, is you don’t know if the person is going to be in removal proceedings, is what you are saying, from your experience? A. Right. I have seen many cases where they pled guilty to felonies that get them deported and they come back and they’re still not deported. ... Q. Okay. You never told Mr. Torres that he will be in deportation proceedings if he pleads? [Emphasis added]. A. I did not use that terminology, no.

The trial court found that the testimony of Appellant and defense counsel conflicted, and resolved any discrepancies in defense counsel’s favor. The trial court also held that defense counsel fully advised Appellant of the immigration consequences of his plea in compliance with constitutional [*9] requirements.

DISCUSSION

In his sole issue on appeal, Appellant contends that the trial court abused its discretion by refusing to grant a writ of habeas corpus because his trial counsel failed to properly admonish him of the immigration consequences of his plea deal, thereby rendering his plea involuntary as a result of ineffective assistance of counsel. We agree.

Standard of Review

HN1 The applicant in a habeas corpus proceeding bears the burden of proving he is entitled to post-conviction relief by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App. 2002). We review the trial court’s grant or denial of habeas corpus for abuse of Page 6 of 10 2014 Tex. App. LEXIS 3168, *9

discretion, viewing the facts in the light most favorable to the trial court’s ruling and deferring to the trial court in matters involving a determination of credibility or demeanor. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006); Ex parte Cisneros, No. 08-11-00180-CR, 2013 Tex. App. LEXIS 4055, 2013 WL 1281995, at *3 (Tex.App.--El Paso Mar. 28, 2013, no pet.)(not designated for publication).

HN2 The Sixth Amendment provides a defendant with the constitutional right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). [*10] Counsel renders constitutionally ineffective assistance warranting reversal where (1) his performance fell below an objective standard of reasonableness, and (2) that the defendant suffered prejudice, i.e., that there was a reasonable probability that but for the actions of defense counsel, the outcome of proceedings would be different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. On habeas review, an applicant must establish both Strickland prongs by a preponderance of the evidence. Ex parte Carpio-Cruz, 08-10-00240-CR, 2011 Tex. App. LEXIS 8930, 2011 WL 5460848, at *7 (Tex.App.--El Paso Nov. 9, 2011, pet. granted)(not designated for publication), rev’d on retroactivity grounds, PD-1872-11, 2013 Tex. Crim. App. Unpub. LEXIS 351, 2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013)(not designated for publication).

Deficient Performance

In addressing the first prong of Strickland, Appellant maintains that defense counsel did not clearly and properly warn him of the impending immigration consequences of his plea, as required by the Sixth Amendment. We agree.

HN3 In discharging his duty to effectively represent his client at the pleading stage, defense counsel must advise a non-citizen client of the adverse immigration consequences a guilty plea may carry. Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010). [*11] The scope of the Padilla duty hinges on how likely it is that a plea agreement will result in removal proceedings. ″When the law is not succinct and straightforward″ on that issue, defense counsel discharges his Padilla duties by ″advis[ing] a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.″ Id. However, ″when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.″ Id.

HN4 Texas courts applying Padilla, including this Court, have held that where the immigration consequences of a plea are a ″virtual certainty,″ defense counsel has a mandatory duty to explicitly state what those consequences will be. See Ex parte Ramirez, 08-11-00073-CR, 2012 Tex. App. LEXIS 6343, 2012 WL 3113140, at *3-*4 (Tex.App.--El Paso Aug. 1, 2012, no pet.)(not designated for publication); Ex parte Carpio-Cruz, 2011 Tex. App. LEXIS 8930, 2011 WL 5460848, at *7; see also Martinez v. State, PD-1338-11, 2012 Tex. Crim. App. Unpub. LEXIS 505, 2012 WL 1868492, at *4 (Tex.Crim.App. May 16, 2012)(not designated for publication), overruling on retroactivity grounds recognized on remand sub nom Ex parte Martinez, 13-10-00390-CR, 2013 Tex. App. LEXIS 7276, 2013 WL 2949546, at *2 (Tex.App.--Corpus Christi June 13, 2013, no pet.)(mem. op., not designated [*12] for publication); Ex parte Tanklevskaya, 361 S.W.3d 86, 96-97 (Tex.App.--Houston [1st Dist.] 2011, pet. granted), rev’d on retroactivity grounds, 393 S.W.3d 787 (Tex.Crim.App. 2013)(recognizing duty to explicitly state that client will be deemed inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II)(West 2008) for pleading guilty to ″violation of . . . any law . . . relating to a controlled substance . . .″ because Page 7 of 10 2014 Tex. App. LEXIS 3168, *13

immigration consequences were clear and presumptively mandatory); Ex parte Olvera, 394 S.W.3d 572, 576 (Tex.App.--Dallas 2012, pet. granted), rev’d on retroactivity grounds, PD-1215-12, 2013 Tex. Crim. App. Unpub. LEXIS 335, 2013 WL 1149926 (Tex.Crim.App. Mar. 20, 2013)(not designated for publication)(counsel has duty to inform client that pleading guilty to aggravated felony will result ″in automatic deportation or exclusion from the country″ under 8 U.S.C. 1227(a)(2)(A)(iii)(West 2005)).3 Merely stating that removal proceedings could ensue after a guilty plea to an aggravated felony or drug offense is ineffective in mandatory removal cases; counsel must clearly state that pleading to the offense will result in removal. Ex parte Ramirez, 2012 Tex. App. LEXIS 6343, 2012 WL 3113140, at *3-*4; Ex parte Carpio-Cruz, 2011 Tex. App. LEXIS 8930, 2011 WL 5460848, at *7; Ex parte Olvera, 394 S.W.3d at 576 [*13] (stating that pleading to aggravated felony ″could″ result in removal is constitutionally ineffective); Ex parte Romero, 351 S.W.3d 127, 131 (Tex.App.--San Antonio 2011, pet. granted), rev’d on retroactivity grounds, 393 S.W.3d 788 (Tex.Crim.App. 2013); Salazar v. State, 361 S.W.3d 99, 103 (Tex.App.--Eastland 2011, no pet.)(use of terms ″likelihood″ and ″possibility″ of removal when conviction would result in ″certain deportation″ rendered counsel’s advice ineffective). Here, trial counsel admitted on cross-examination that he told Appellant that removal was a possibility and advised him to consult an immigration lawyer. Given that a cursory check of the Immigration and Nationality Act shows that HN5 robbery and possession of cocaine are both automatically deportable offenses under immigration law, see 8 U.S.C.A. § 1101(a)(43)(G)(West 2005)(″theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year″ is aggravated felony); 8 U.S.C.A. § 1227(a)(2)(B)(i)(West 2005)(state law conviction ″relating to a controlled substance . . . other than a single offense involve possession for one’s own use of 30 grams or less of marijuana″ is deportable offense), and given thatHN6 deferred adjudication has the same effect for immigration purposes as a conviction, see Garnica-Vasquez v. Reno, 40 F.Supp.2d 398, 405-06 (W.D.Tex. 1999), counsel had a duty to stress that pleading guilty to those crimes and receiving deferred adjudication would absolutely result in [*15] Appellant’s imminent removal from the United States. Padilla, 559 U.S. at 369, 130 S.Ct. at 1483. At the habeas hearing, trial counsel relayed his belief that even where a defendant pleads guilty to an automatically deportable offense, removal is uncertain because ICE has not removed people he knows personally who have pleaded guilty to such offenses. But HN7 counsel’s constitutional duty to inform his client that his removal is a virtual legal certainty does not wane merely because counsel believes the probability of actual removal is uncertain based on his past experience and ICE’s enforcement priorities. Padilla, 559 U.S. at 359, 130 S.Ct. at 1478 (counsel ineffective in advising client he ″did not have to worry about immigration status since he had been in the country so long″). Nor is counsel’s ignorance of mandatory deportation consequences under the Immigration and Nationality Act excused by immigration law’s complexity, as ″we have held counsel accountable for knowledge, or the ability to attain knowledge, of relevant legal matters that are neither novel nor unsettled.″ Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App. 1999). The list of deportable offenses, although extensive, 3 Prior to the United States Supreme Court’s decision in Chaidez v. United States, U.S. , 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), Texas courts routinely applied the Padilla standard retroactively to convictions made final before March 31, 2010 (the date of the decision in Padilla was announced). However, in Chaidez, the majority held that Padilla announced a new rule of constitutional law inapplicable in habeas challenges to convictions that became final prior to March 31, 2010. Id. at 1113. In light of Chaidez, the Court of Criminal Appeals subsequently decided that Padilla also did not apply retroactively under the Texas Constitution. Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013). Although many [*14] of the cases cited herein were reversed on retroactivity grounds, we find their reasoning to be sound and rely on these cases as persuasive authority.

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[*16] is clearly set out at 8 U.S.C.A. § 1227(a), and the list of 21 types of aggravated felonies triggering automatic removal is set out at 8 U.S.C.A. § 1101(a)(43). Padilla imposes a duty on defense counsel to know what these crimes are and to advise a client that a plea to any of these crimes will make him or her presumptively deportable. Padilla, 559 U.S. at 369, 130 S.Ct. at 1483. Counsel’s admitted failure to even consult the Immigration and Nationality Act list in advising his client is deeply troubling, particularly in light of counsel’s status as a public defender practicing in an area located on the United States-Mexico border with a high immigrant population.

Trial counsel’s admission that he did not explicitly state that Appellant’s post-plea removal was a legal certainty, coupled with his admitted failure to research which offenses constituted aggravated felonies under the Immigration and Nationality Act, constitute ineffective assistance in an aggravated felony and narcotics case as a matter of law. The trial court abused its discretion in finding otherwise.

Prejudice

We next address whether Appellant was prejudiced by counsel’s deficient performance at the plea stage.

In Padilla, [*17] the Supreme Court only addressed the deficient performance prong of Strickland, leaving the lower courts to formulate their own approaches to the issue of prejudice. 559 U.S. at 360, 130 S.Ct. at 1478. While the State points us to a four-factor approach to prejudice that our sister circuit in Houston has taken that assesses a defendant’s probability of success at trial, Ex parte Murillo, 389 S.W.3d 922, 928-31 (Tex.App.--Houston [14th Dist.] 2013, no pet.), abrogated on retroactivity grounds by Ex parte Chaidez, 133 S.Ct. at 1113, and Ex parte De Los Reyes, 392 S.W.3d at 679, we have previously rejected a solely merits-based prejudice analysis, recognizing that HN8 ″[d]eprivation of a trial″ stemming from a Padilla violation ″is a structural defect, which amounts to a serious denial of the entire judicial proceeding itself, and it demands a presumption of prejudice.″ Ex parte De Los Reyes, 350 S.W.3d 723, 730 (Tex.App.--El Paso 2011, pet. granted), rev’d on retroactivity grounds, 392 S.W.3d 675 (Tex.Crim.App. 2013). ″The focus of the prejudice inquiry . . . is whether the defendant was deprived of a particular proceeding by counsel’s deficient performance, not whether the outcome of that [*18] proceeding would have been favorable to the defendant.″ Id. at 731. ″Therefore, the defendant must demonstrate that but for counsel’s performance, he would have availed himself of the proceeding in question.″ Id. In assessing prejudice, ″we are to consider the circumstances surrounding [the] guilty plea and the gravity of the advice that [the defendant] did not receive as it pertained to [the defendant’s] plea determination.″ Ex parte Tanklevskaya, 361 S.W.3d at 97.

Appellant met his burden in establishing prejudice. Appellant stated in his affidavit that he accepted the plea deal because trial counsel advised him that he would not have to go to jail and that the deferred adjudication meant the charges would eventually be dismissed. The fact that trial counsel would explain those circumstances but did not inform him that the plea would subject Appellant to mandatory removal weighs heavily in our analysis, particularly considering that prejudice is presumed. Id. Appellant was also an LPR, a native English speaker, and has resided in the United States since he was a small child, all of which weigh in favor of a prejudice finding. See Ex parte Ramirez, 2012 Tex. App. LEXIS 6343, 2012 WL 3113140, at *4 (taking residence [*19] in the United States since early childhood and ties to home country as prejudice factors). Finally, Appellant sufficiently alleged that he would have taken alternate courses of action in his habeas corpus petition, as required to establish

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prejudice. See Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985)(habeas petition must contain allegations that applicant would have pursued other options to satisfy prejudice prong of Strickland). Specifically, Appellant contended before the trial court and this Court that as an LPR, he would have been eligible for immigration relief and citizenship through cancellation of removal4 on May 24, 2013, when he would have resided lawfully in the United States for seven years. Appellant maintains that his plea deal directly led to him being placed in removal proceedings before he was timely eligible for cancellation of removal, and that the offenses he pled to now preclude any discretionary immigration relief at all. Had he received proper counsel, Appellant claims he would have delayed the plea until he was statutorily eligible for cancellation of removal and sought an immigration-neutral plea agreement, or alternatively, gone [*20] to trial, moved to suppress the narcotics, and fully litigated that issue.

In viewing the totality of the circumstances, we find that Appellant has met his burden in establishing prejudice. Ex parte De Los Reyes, 350 S.W.3d at 730. Such prejudice could not be cured by the one paragraph admonishment in the plea papers stating that the plea ″may″ result in his removal. Id. at 731; Ex parte Tanklevskaya, 361 S.W.3d at 99.

Appellant’s sole issue is sustained. We reverse the trial court’s order denying writ of habeas corpus and render judgment [*21] granting the writ of habeas corpus.

March 21, 2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

4 Cancellation of removal is an affirmative defense in removal proceedings that a lawful permanent resident may assert to defeat removal, provided he:

1) has been an alien lawfully admitted for permanent residence for not less than 5 years,

2) has resided in the United States continuously for 7 years after having been admitted in any status, and

3) has not been convicted of any aggravated felony.

8 U.S.C.A. § 1229b (West 2008). The continuous residency clock terminates upon ICE’s service of an immigration indictment known as a Notice to Appear, or when the alien has committed an offense rendering him deportable, whichever occurs first. 8 U.S.C.A. § 1229b(d)(1).

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