State of New Jersey v. Horace Blake , 444 N.J. Super. 285 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5695-13T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, February 26, 2016
v. APPELLATE DIVISION
HORACE BLAKE,
Defendant-Appellant.
__________________________________
Submitted October 15, 2015 – Decided February 26, 2016
Before Judges Alvarez, Ostrer and Haas.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 11-12-1890.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the briefs).
Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Nancy
A. Hulett, Assistant Prosecutor, of counsel
and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Horace Blake appeals from the trial court's April
3, 2014, order denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. He collaterally
challenges his conviction, after a guilty plea, of third-degree
possession of marijuana with intent to distribute, N.J.S.A.
2C:35-5(b)(11), and third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a). Defendant contends that his trial
counsel was ineffective because he failed to adequately advise
him of the immigration consequences of his plea. Having
considered defendant's arguments in light of the record and
applicable principles of law, we affirm.
I.
We discern the following facts from the record. On July
26, 2011, defendant was stopped on the New Jersey Turnpike. He
admitted to the officer that he was under the influence of
marijuana, and was transporting five pounds of marijuana for the
purpose of distribution. Defendant also had a five-year-old
child in the car who was not restrained in a safety seat.
A Middlesex County Grand Jury indicted defendant on
December 20, 2011, charging him with second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a) (count one); second-
degree possession of marijuana with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(b) (count
two); and fourth-degree possession of marijuana over fifty
grams, N.J.S.A. 2C:35-5(a)(3) (count three).
Defendant remained incarcerated in lieu of bail until his
plea hearing on June 29, 2012. Defendant pleaded guilty to
2 A-5695-13T4
third-degree endangering the welfare of a child, and third-
degree possession of marijuana with intent to distribute. Count
three of the indictment and various motor vehicle offenses were
subsequently dismissed. The plea agreement called for a
sentence of probation, conditioned upon 364 days in jail, and
immediate sentencing. The court sentenced defendant in accord
with the plea agreement, deeming the 340 days that defendant had
already spent in custody fulfilled the custodial portion of his
sentence.
At the combined plea and sentencing hearing, there was
extensive discussion of the immigration consequences of
defendant's plea. Defendant was made aware that he would be
taken into custody by federal immigration officials immediately
upon being sentenced. The section of the plea form describing
promises made to defendant by the prosecutor, his attorney, or
anyone else, stated that defendant was "to be released to ICE
[Immigration and Customs Enforcement] custody forthwith."
In response to question seventeen of the plea form,
defendant admitted he was not a citizen and acknowledged
immigration consequences of his plea.1 The form stated:
1
Defendant utilized the August 1, 2011, revision of the plea
form. See Administrative Directive #05-11 "Criminal Plea Form –
Question Regarding the Immigration Consequences of a Guilty
Plea" (August 1, 2011), https://www.judiciary.state.nj.us/
(continued)
3 A-5695-13T4
17. a. Are you a citizen of the United
States?
If you have answered "No" to this
question, you must answer
Questions 17b – 17f. If you have
answered "Yes" to this question,
proceed to Question 18[.]
b. Do you understand that if you are
not a citizen of the United
States, this guilty plea may
result in your removal from the
United States and/or stop you from
being able to legally enter or re-
enter the United States?
c. Do you understand that you have
the right to seek individualized
advice from an attorney about the
effect your guilty plea will have
on your immigration status?
d. Have you discussed with an
attorney the potential immigration
consequences of your plea? If the
answer is "No," proceed to
question 17e. If the answer is
"Yes," proceed to question 17f.
e. Would you like the opportunity to
do so?
f. Having been advised of the
possible immigration consequences
and of your right to seek
individualized legal advice on
your immigration consequences, do
you still wish to plead guilty?
(continued)
directive/2011/dir_05-11.pdf. See also Report on Revisions to
the Plea Form to Address Immigration Consequences of a Guilty
Plea, Exhibit A to Report of the Supreme Court Committee on
Criminal Practice (Feb. 15, 2011).
4 A-5695-13T4
Defendant answered "No" to 17a, "Yes" to 17b, 17c, 17d and
17f, and did not respond to 17e. The judge orally recited these
questions, and elicited the same responses from defendant,
except that he also responded in the negative to 17e.
During the colloquy between the court and counsel,
defendant acknowledged that the drug conviction was a deportable
offense; he faced the "risk of deportation"; ICE would
immediately take him into custody; and, he would be given the
opportunity to resist removal. The following exchange took
place between defendant and his counsel:
Q: Mr. Blake, . . . your decision [to]
accept[] the plea is ultimately based upon
the advice you received, the possession with
intent to deliver is a third[-]degree
offense, [and] is in fact considered a
deportable offense, you understand that?
A: Yes, sir.
Q: It is also very likely although not
quite as certain that the third[-]degree
endangering is also a deportable offense,
you understand that?
A: Yes, sir.
Defense counsel then reviewed defendant's decision to
forego a suppression motion, challenging the traffic stop.
Counsel confirmed defendant's understanding that if the motion
were successful, "the risk of immigration consequences would
disappear," but if unsuccessful, "not only would the risk of
5 A-5695-13T4
deportation remain but [defendant] would be facing State Prison
. . . ." Counsel then continued, confirming defendant's
understanding the deportation was "likely":
Q: Now, as the judge was talking to you
the decision you're making today is
ultimately to terminate your custody in
Middlesex County, to go to immigration and
to deal with either deportation which is
likely or any other opportunities that you
might have, is that what you're making the
decision to do?
A: Yes, sir.
In discussing defendant's request for immediate sentencing,
the judge stated, "And your attorney wants me to release you at
the time of sentencing today so you can go straight into ICE
custody and start that process so you could fight to stay in
this country?" Defendant responded, "Yes, sir." On the other
hand, in discussing defendant's license suspension, the court
stated, "[I]t's not like you're going to be released back into
the community right away, do you understand that?" After
sentencing, the judge added, "If you stay in this country,
you're on probation. . . . If you get released back into the
community you need to report to probation here in New Jersey,
come see me. If ICE lets you go you post bail, you come see
me."
In a direct appeal before the excessive sentencing calendar
on March 6, 2013, appellate counsel argued defendant should be
6 A-5695-13T4
afforded "the opportunity . . . to revisit this plea based on
the fact that [defendant] didn't know all the consequences" of
his plea. The State responded that the plea hearing record
demonstrated that defendant understood the immigration
consequences of his plea. The court affirmed defendant's
sentence and conviction. State v. Blake, No. A-1679-12 (App.
Div. Mar. 6, 2013).
Defendant's pro se PCR petition followed in April 2013. In
his supporting certification, defendant alleged he received
ineffective assistance of counsel in various respects.
Regarding his immigration status, he alleged his attorney was
ineffective by failing to seek a judicial recommendation against
deportation (JRAD), although the Immigration Act of 1990
repealed the provision permitting JRADs. See State v. Gaitan,
209 N.J. 339, 359-60 (2012), cert. denied, __ U.S. __, 133 S.
Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant also asserted his
attorney pressured him to plead guilty, insinuating counsel did
so because he was unprepared. Defendant asserted counsel missed
four court dates; failed to challenge the State's version of
facts; and failed to file motions on his behalf.
In the context of his claim that counsel pressured him,
defendant referenced the likelihood of his deportation, which we
quote without correcting grammatical and spelling errors:
7 A-5695-13T4
[Counsel] had [a] plea bargain agreement in
his hand. Telling me to sign, go to
immigration get Deported back to Jamaica.
There are many ways to get back to the
United States. Even though I told him I
wasn't selling the Marijuana, I made a
regrettable mistake of possession and would
could of prove it in the Court of Law.
He reiterated that he "had no way of knowing that this
lawyer had inadequately inform him that he should plea guilty,
be deported to Jamaica and fine a way to get back there are many
ways. I was confuse, mystified and astonish by my lawyer."
In a supplemental certification prepared after PCR counsel
was appointed, defendant asserted he was unaware that the drug
offense to which he pleaded guilty was an "aggravated felony,"
which would result in "mandatory deportation"; he alleged he
believed deportation was only a possibility.
2. Although I told my attorney, prior to
the plea, that I was not a U.S. Citizen, I
was never told that the crime that I was
pleading guilty to was considered an
aggravated felony under federal immigration
law. I was never told that a guilty plea to
this drug offense would result in my
mandatory deportation. Had I been told
this, I never would have entered the plea,
but rather I would have gone to trial.
3. When I appeared before [the] Judge
. . . I was never told that deportation was
mandatory. I was told that this was
something that may happen to me and that it
was a possibility. I was told by the Court
that they were not responsible for
immigration, but were going to give me
8 A-5695-13T4
probation so that I could fight to stay in
the country.
4. I have now learned that deportation for
a guilty to distribution of a controlled
dangerous substance means that my
deportation is mandatory.
[5.] During my conversation with the Court
and with trial counsel I was told that my
sentence would be three years of probation
with time served in the county jail as a
condition of that probation. Based on these
statements, I believed that I could oppose
my deportation. However, I now realize this
is untrue.
The court heard oral argument on defendant's petition in
April 2014. Defendant's PCR counsel argued that defendant
"should have been told, under no uncertain terms, that [his]
deportation was an absolute certainty"; and trial counsel's
failure to advise him that deportation was mandatory constituted
ineffective assistance of counsel.
The court denied defendant's petition without an
evidentiary hearing. The PCR judge found that defendant had
been properly advised of the potential immigration consequences
of his plea in accordance with Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Consequently,
defendant failed to make a prima facie showing of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge
explained:
9 A-5695-13T4
[D]uring the plea . . . colloquy I read to
him all of Question 17 of the plea form. He
responded that he was aware of
the possibility of . . . immigration
consequences, and that even though he would
be given the opportunity to speak with an
independent immigration attorney he chose
not to do so . . . .
So, the colloquy in the transcripts
show that I go over all the questions in the
plea form, trial counsel then supplements
the record and talks to the defendant
relative to the third[-]degree possession
charge, and that it was a deportable
offense. Trial counsel also explains to the
defendant that the third[-]degree
endangering was very likely a deportable
offense, but wasn't certain. But this is
not Padilla nor [State v. Nunez-Valdez, 200
N.J. 129 (2009)] where the defendant was
actually told that his guilty plea would
have no immigration consequences, or told
that his deportation was only a possibility.
He was unequivocally informed that the
third[-]degree possession charge was
deportable.
. . . .
[B]ased on the submissions of the
parties my analysis of the applicable case
law, the guilty plea, the sentencing
transcripts, I can't find ineffective
assistance of counsel as articulated in
Strickland v. Washington.
This appeal followed. Defendant presents the following
argument for our review:
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT TRIAL COUNSEL
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
BY FAILING TO INFORM HIM OF THE MANDATORY
DEPORTATION CONSEQUENCES OF HIS PLEA.
10 A-5695-13T4
II.
We defer to trial court's factual findings made after an
evidentiary hearing on a petition for PCR. State v. Nash, 212
N.J. 518, 540 (2013). However, where, as here, no evidentiary
hearing was conducted, we may review the factual inferences the
court has drawn from the documentary record de novo. State v.
Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v.
O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We also
review de novo the court's conclusions of law. Harris, supra,
181 N.J. at 420. Thus, it is within this court's authority "to
conduct a de novo review of both the factual findings and legal
conclusions of the PCR court." Id. at 421.
We recognize that for a non-citizen defendant,
"[p]reserving the . . . right to remain in the United States may
be more important . . . than any potential jail sentence."
Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed.
2d at 295 (quoting INS v. St. Cyr, 533 U.S. 289, 322, 121 S. Ct.
2271, 2271, 150 L. Ed. 2d 347, 347 (2001)). Defendant entered
his plea on June 29, 2012. Therefore, his counsel was obliged
to comply with the standard of practice established in Padilla,
which was given prospective effect. Chaidez v. United States,
11 A-5695-13T4
___ U.S. ___, ___, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149, 155
(2013); Gaitan, supra, 209 N.J. at 372-73.
To provide effective assistance of counsel, post-Padilla, a
defense attorney is required to address, in some manner, the
risk of immigration consequences of a non-citizen defendant's
guilty plea. Padilla, supra, 559 U.S. at 367, 130 S. Ct. at
1482, 176 L. Ed. 2d at 294 ("The weight of prevailing
professional norms supports the view that counsel must advise
her client regarding the risk of deportation."). The Court
recognized that immigration law is often complex, and the
consequences of a conviction are often far from clear. Id. at
369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96. Thus, the
specificity and definiteness of counsel's required advice varies
with the clarity of the immigration law itself. Ibid.; Gaitan,
supra, 209 N.J. at 380 ("[A]ttorneys now have specific duties as
to how they must advise pleading noncitizen criminal defendants,
depending on the certainty of immigration consequences flowing
from the plea.").
In the "numerous situations in which the deportation
consequences of a particular plea are unclear . . . a criminal
defense attorney need do no more than advise a noncitizen client
that pending criminal charges may carry a risk of adverse
immigration consequences." Padilla, supra, 559 U.S. at 369, 130
12 A-5695-13T4
S. Ct. 1483, 176 L. Ed. 2d at 296. However, where the "terms of
the relevant immigration statute are succinct, clear and
explicit in defining the removal consequence," then an attorney
is obliged to be "equally clear." Id. at 368-69, 130 S. Ct. at
1483, 176 L. Ed. 2d at 295-96.
In Padilla, the defendant, a lawful permanent resident,
pleaded guilty to transporting a large quantity of marijuana.
Id. at 359, 130 S. Ct. at 1477-78, 176 L. Ed. 2d at 289-90. The
Court held that the immigration consequences of a drug offense
described in 8 U.S.C.A. § 1227(a)(2)(B)(i)2 "commands removal."
Id. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. In other
words, deportation is "presumptively mandatory." Ibid. Because
the deportation consequence was "truly clear," the attorney was
obliged to give advice that was equally clear. Id. at 369, 130
S. Ct. at 1483, 176 L. Ed. 2d at 296.
Our State Supreme Court has interpreted Padilla to require
an attorney "to point out to a noncitizen client that he or she
is pleading to a mandatorily removable offense . . . ." Gaitan,
supra, 209 N.J. at 380. The failure to do so constitutes
2
"Any alien who at any time after admission has been convicted
of a violation of (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States, or a foreign
country 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 deportable."
13 A-5695-13T4
"deficient performance of counsel." Ibid. However, "even if
removal is not 'mandated' in the sense that a state offense is
not identified on published lists of offenses equating to
aggravated felonies or like mandatorily removable offenses,
counsel must highlight for noncitizen clients that entering a
guilty plea will place them at risk of removal . . . ." Id. at
381. Counsel must also advise clients to seek immigration
counseling. Ibid.
Defendant argues that his counsel was not specific enough
in describing the potential for removal after his convictions.
Defendant alleges in his second certification that counsel never
told him that he pleaded to an aggravated felony under federal
immigration law; and that "a guilty plea to this drug offense
would result in . . . mandatory deportation." He argues his
counsel was required to inform him that "deportation was
presumptively mandatory." Had counsel done so, defendant
asserts he would have gone to trial, rather than plead guilty.
Counsel also highlights the trial judge's references to
defendant's intention to "fight to stay in this country" and his
statement that if ICE released defendant, he needed to report to
probation. Defendant also refers to the wording of question 17,
which states that the plea "may result in . . . removal."
Pointing to statements made at the plea hearing, and in the plea
14 A-5695-13T4
form, he argues he was misled to believe he might not be
deported.
We are unconvinced that defendant has presented a prima
facie case of ineffective assistance of counsel. First,
defendant places undue weight on the statements of the trial
judge to establish that his plea counsel provided ineffective
assistance. The judge's statements may not be imputed to
counsel. The judge is obliged to ascertain that a plea is
entered voluntarily, without threats or promises outside the
record, "with an understanding of the nature of the charge and
the consequences of the plea." R. 3:9-2. That obligation is
related to, but distinct from the attorney's obligation to
render effective assistance. Cf. State v. Jamgochian, 363 N.J.
Super. 220, 227 (App. Div. 2003) (stating trial judge is not
obliged to disclose "all the details" to assure defendant is
aware he would be subject to community supervision for life as a
consequence of his plea, "but the court should at least assure
itself that defense counsel has discussed the matter with his
client and defendant understands . . . .").
The judge in this case adhered to the plea form adopted by
our Court.3 While the form states that a plea "may result in
3
Shortly after Nunez-Valdez, supra, 200 N.J. 129, was decided,
the plea form reflected an attempt to distinguish between
(continued)
15 A-5695-13T4
. . . removal," the form accounts for those cases where removal
is virtually inevitable by informing a defendant that he may
seek "individualized advice from an attorney" about the
immigration consequences of his plea, and further inquiring
about whether defendant has in fact received such individualized
advice.4
Second, focusing on defendant's claims with respect to his
counsel's obligations, defendant has not presented a prima facie
case that his attorney failed to comply with the standard set in
Padilla, as interpreted in Gaitan. Defendant pleaded guilty to
a drug offense, which presented the same clear consequences as
those presented in Padilla. In his initial pro se petition,
(continued)
convictions that may, and convictions that will, subject a
defendant to removal. The form asked, "Do you understand that
if you are not a United States citizen or national, you may be
deported by virtue of your plea of guilty?" and "Do you
understand that if your plea of guilty is to a crime considered
an 'aggravated felony' under federal law you will be subject to
deportation/removal?" See Administrative Directive #08-09,
"Criminal Plea Forms – Amendments to Two Forms" (Sept. 4, 2009),
http://www.judiciary.state.nj.us/directive/2009/dir_08-09.pdf.
The Court subsequently revised the form, and adopted the version
utilized in defendant's plea.
4
We do not address here whether, and to what extent, a judge is
obliged to engage in a colloquy beyond that dictated in the plea
form. The issue is not directly raised by a petition based on
counsel's alleged ineffectiveness. Also, although defendant
contends he was misled by the judge's reference to fighting
removal, defendant acknowledges that he did "fight" for a stay
of his deportation, and succeeded in some measure.
16 A-5695-13T4
defendant acknowledged that his attorney told him to "go to
Immigration[,] get [d]eported back to Jamaica," and then explore
the "many ways to get back to the United States." (Emphasis
added). These statements belie the assertions made in his
supplemental certification that his attorney never told him he
was subject to "mandatory deportation," or that removal was
"presumptively mandatory," regardless of whether those precise
words were used.5 Whether or not defense counsel described
defendant's crime as an "aggravated felony,"6 it is clear, based
on defendant's admissions in his initial petition, that counsel
deemed defendant's deportation inevitable and unavoidable and
advised defendant accordingly. Furthermore, the plea form and
plea colloquy left no doubt that defendant would be taken into
the custody of immigration officials immediately after
sentencing.
5
We do not address defendant's potential for re-entry, as he has
not raised the issue.
6
Under 8 U.S.C.A. § 1227(a)(2)(A)(iii), a non-citizen "is
deportable" if he commits an "aggravated felony." "Aggravated
felony" is defined to include numerous categories of offenses, 8
U.S.C.A. § 1101(a)(43), which sometimes makes it difficult to
determine whether a State-defined crime falls within the
federally-defined category. However, as noted in Padilla,
little uncertainty surrounds the determination whether a
defendant is deportable if he has committed a drug offense,
because federal law separately provides that a non-citizen "is
deportable" if convicted of a controlled substance offense other
than a single offense involving personal possession of thirty
grams or less of marijuana. 8 U.S.C.A. § 1227(a)(2)(B)(i).
17 A-5695-13T4
We therefore view defendant's allegation in his second
certification that he was unaware he was eligible for "mandatory
deportation" to be a "bare assertion . . . insufficient to
support a prima facie case of ineffectiveness." State v.
Cummings, 321 N.J. Super. 154, 171 (App. Div.), certif. denied,
162 N.J. 199 (1999). Defendant may not create a genuine issue
of fact, warranting an evidentiary hearing, by contradicting his
prior statements without explanation. Cf. Shelcusky v.
Garjulio, 172 N.J. 185, 201-02 (2002) (discussing the "sham
affidavit" doctrine).
Third, we reject defendant's suggestion that a defense
attorney must use "magic words" — "mandatory deportation" or
"presumptively mandatory deportation" — to fulfill his
obligation to provide effective assistance to a non-citizen
client. The Court in Padilla used various turns of phrase to
convey that once federal officials commence removal proceedings
against a non-citizen convicted of a deportable offense, the
prospects for defeating removal under the immigration statutes
are slim:
The "drastic measure" of deportation or
removal . . . is now virtually inevitable
for a vast number of noncitizens convicted
of crimes.
. . . .
18 A-5695-13T4
Under contemporary law, if a noncitizen
has committed a removable offense after the
1996 effective date of these amendments, his
removal is practically inevitable but for
the possible exercise of limited remnants of
equitable discretion vested in the Attorney
General to cancel removal for noncitizens
convicted of particular classes of offenses.
. . . .
And, importantly, recent changes in our
immigration law have made removal nearly an
automatic result for a broad class of
noncitizen offenders.
. . . .
Padilla's counsel could have easily
determined that his plea would make him
eligible for deportation simply from reading
the text of the statute, which addresses not
some broad classification of crimes but
specifically commands removal for all
controlled substances convictions except for
the most trivial of marijuana possession
offenses . . . . The consequences of
Padilla's plea could easily be determined
from reading the removal statute, his
deportation was presumptively mandatory and
his counsel's advice was incorrect.
. . . .
To satisfy this responsibility, we now
hold that counsel must inform her client
whether his plea carries a risk of
deportation.
[Padilla, supra, 559 U.S. at 360-74, 130 S.
Ct. at 1478-86, 176 L. Ed. 2d at 290-99
(emphasis added).]
Our Court held in Gaitan that, post-Padilla,
19 A-5695-13T4
[C]ounsel's failure to point out to a
noncitizen client that he or she is pleading
to a mandatorily removable offense will be
viewed as deficient performance of counsel;
affirmative advice must be conveyed as part
of the counseling provided when a client
enters a guilty plea to a state offense that
equates to an aggravated felony, triggering
eligibility for mandated removal.
[Gaitan, supra, 209 N.J. at 380 (emphasis
added).]
None of these formulations impose a duty to advise a client
that removal is a certainty, even if the client's offense makes
him clearly "deportable" under federal law for committing a
controlled substance offense under 8 U.S.C.A. §
1227(a)(2)(B)(i).
Although there are precious few grounds to contest or
secure relief from a conviction of a crime that is clearly
deportable, such as many CDS offenses, the likelihood of actual
removal also depends on the enforcement discretion of federal
immigration officials. See State v. Brewster, 429 N.J. Super.
387, 396 (App. Div. 2013) (noting that the defendant, convicted
of a mandatorily removable CDS offense, "remained undisturbed by
federal immigration officials for almost twelve years" after his
1998 conviction). The Department of Homeland Security's
enforcement priorities have also evolved over the years. See,
e.g., Dep't of Homeland Sec., Memorandum, Policies for the
Apprehension, Detention and Removal of Undocumented Immigrants
20 A-5695-13T4
(Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publica-
tions/14_1120_memo_prosecutorial_discretion.pdf (prioritizing
removal of, among others, persons convicted of felonies and
aggravated felonies "unless they qualify for asylum or another
form of legal relief," or, "there are compelling and exceptional
factors that clearly indicate the alien is not a threat to
national security, border security, or public safety and should
not therefore be an enforcement priority.").
We recognize that an attorney may fail to provide effective
assistance if he or she minimizes the risk of removal, and
thereby misleads a client.7 On the one hand, an attorney must
advise a client convicted of clearly deportable offenses, such
as CDS offenses, that if enforcement is commenced, the client
faces virtually inevitable removal, although the manner of
conveying that fact is as variable as the English language. On
the other hand, where the law is "highly complex and not capable
of being reduced to any clear, succinct, or certain answer," an
attorney may fulfill his duty by conveying to his client that
the immigration consequences of his plea are uncertain. State
v. Telford, 420 N.J. Super. 465, 468-70 (App. Div. 2011)
7
Likewise, under certain circumstances, an attorney may
exaggerate the risks of removal to the detriment of a client who
would forego an otherwise attractive plea offer.
21 A-5695-13T4
(applying Padilla standard), certif. denied, 209 N.J. 595
(2012).
A court must review an attorney's advice in its totality to
determine whether he has fulfilled his duty to convey the
immigration consequences of a plea, taking into account the
clarity, or lack thereof, of the immigration law itself. Taking
one statement or phrase in isolation can provide a distorted
picture of an attorney's advice.8 Under the circumstances of
this case, particularly in light of defendant's admissions in
his initial certification, we find no basis to conclude that
defense counsel depreciated defendant's risk of removal, misled
8
Other courts have grappled with the issue of what language is
sufficient to fulfill an attorney's obligation where the offense
is clearly deportable. See, e.g., Popoca-Garcia v. State, 334
P.3d 824, 826 n.1, 824-28 (Idaho 2014) (highlighting divergent
views of various state courts regarding the acceptability of
such terms as "likelihood," "possibility," "very likely," and
"eligible for deportation" to describe the risks of removal, and
affirming trial court finding that defendant knew he "would be
deported" when counsel told him "immigration officials 'could'
deport him and that they 'most likely would.'"); compare
Commonwealth v. DeJesus, 9 N.E.3d 789 (Mass. 2014) (telling
defendant he was "eligible for deportation" and would "face
deportation" held to be inadequate) with Neufville v. State, 13
A.3d 607, 614 (R.I. 2011) ("Counsel is not required to inform
their clients that they will be deported, but rather that a
defendant's 'plea would make [the defendant] eligible for
deportation.'") (emphasis added) (quoting Padilla, supra, 559
U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295). We need
not enter that thicket, given our view of the totality of
circumstances here.
22 A-5695-13T4
defendant, or otherwise failed to advise him in accordance with
the standards set forth in Padilla and Gaitan.
Affirmed.
23 A-5695-13T4