In an order signed August 5, 2010, a Texas District Court judge vacated an LPR’s theft conviction in response to a claim based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Ex Parte Gonzalez, CR-395-08-J(1) (Tex. Dist. Ct. Aug. 9, 2010). In Padilla, the Supreme Court held that the Sixth Amendment right to counsel requires a defense attorney to accurately advise a client about the likelihood of deportation. Padilla, 130 S. Ct. at 1483.
This case involved an LPR who pled guilty to a Texas theft offense on April 3, 2008. He was sentenced to two years imprisonment, five years community supervision, and a fine. DHS initiated removal proceedings as a result of this conviction claiming that the conviction constitutes an aggravated felony. INA § 101(a)(43)(G) provides that “a theft offense…or burglary offense for which the term of imprisonment [is] at least one year” is an aggravated felony.
On June 1, 2010, just over two months after the Supreme Court issued Padilla, González filed a writ of habeas corpus, the method used in Texas courts to seek post-conviction relief.
After hearing testimony from González, his defense counsel, and others, Judge Israel Ramon, Jr. of the 430th District Court, found that González’s defense attorney “failed to inform Gonzalez that a plea of guilty to Theft, a State Jail Felony, where the sentence imposed is one (1) year or more, would result in having been convicted of an aggravated felony for immigration purposes.” Ex Parte Gonzalez, CR-395-08-J(1), slip op. at 3. Moreover, the Court concluded that this theft conviction “can readily be determined to be an ‘aggravated felony’ by simply reading the plain and clear language” of the INA. Ex Parte Gonzalez, CR-395-08-J(1), slip op. at 3.
Importantly, González’s defense attorney claimed that she advised González that his conviction “may result in deportation.” Ex Parte Gonzalez, CR-395-08-J(1), slip op. at 2. This qualified advice, the Court concluded, was insufficient to satisfy Padilla’s requirement that “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” Ex Parte Gonzalez, CR-395-08-J(1), slip op. at 7 (quoting Padilla, 130 S. Ct. at 1483. Interestingly, the Texas District Court noted that it “considered applying Padilla prospectively,” but declined to do so. Ex Parte Gonzalez, CR-395-08-J(1), slip op. at 7. Instead, the Court applied Padilla to González’s 2008 conviction.
As a result of this decision the DHS trial attorney has moved to terminate removal proceedings.
crImmigration.com co-editor Carlos M. García was lead counsel for González.