A Texas intermediate appellate court vacated a conviction based on a Padilla claim where the plea attorney advised the noncitizen defendant about the possibility of deportation. Salazar v. State, No. 11-11-00029-CR, slip op. (Tex. Ct. App. Aug. 31, 2011) (Wright, McCall, and Hill, J.). Justice Hill wrote the panel’s decision.
This case involved a high school aged noncitizen defendant who “had been reared in the United States” but had been an LPR for less than five years. Salazar, No. 11-11-00029-CR, slip op. at 3. After helping his friend remove a tailgate from a pickup truck belonging to the friend’s ex-girlfriend, Salazar was prosecuted for theft. Upon his attorney’s advice that “we are not telling you you will be deported, we are not telling you you won’t be deported, but there is a possibility that this plea will affect your residence in the United States,” Salazar pleaded guilty to theft of property valued at $1,500 or more but less than $20,000. Salazar, No. 11-11-00029-CR, slip op. at 1, 2. He was sentenced to two years deferred adjudication, plus a fine, restitution, and court costs. Salazar, No. 11-11-00029-CR, slip op. at 1.
Though the Texas intermediate court does not explain the date of conviction, the offense occurred in late 2009 so presumably he was convicted after March 31, 2010, the date Padilla v. Kentucky, 130 S. Ct. 1473 (2010), was issued, thus eliminating any retroactivity problem.
Lacking any procedural complications, the Texas court thus turns first to the level of advice that the defense attorney was required to provide under Padilla. Despite the court’s failure to cite to a particular removal provision, it appears to have focused on INA § 237(a)(2)(A)(i) which renders a person removable if convicted of a crime involving moral turpitude committed within five years of admission if a sentence of one year or longer may be imposed.
The court found that Salazar’s conviction undisputedly placed him within provision, thereby rendering deportation “certain”: “It is undisputed that Salazar’s deportation was certain because of his plea of guilty at a time when he had not been a legal resident of the United States for at least five years.” Salazar, No. 11-11-00029-CR, slip op. at 3.
Because Salazar’s deportation was clear from reading the statute, the court explained that, under Padilla, “the duty to give correct advice is equally clear.” Salazar, No. 11-11-00029-CR, slip op. at 3 (citing Padilla 130 S. Ct. at 1483). The court needed all of one sentence to explain that Salazar’s attorney failed to provide clear advice about deportation: “Inasmuch as counsel did not give Salazar correct advice, we hold that Salazar has satisfied the first prong of Strickland,” referring to the deficient performance prong of Strickland v. Washington, 466 U.S. 688 (1984) about which I have written in greater detail previously. Salazar, No. 11-11-00029-CR, slip op. at 3.
Having concluded that Salazar’s attorney performed deficiently, the court turned to Strickland’s second requirement—that the deficient performance have actually prejudiced Salazar. This, the court explains, requires that “Salazar must establish that a decision to reject the plea bargain would have been rational under the circumstances.” Salazar, No. 11-11-00029-CR, slip op. at 3. Because of Salazar’s youthfulness and the fact that this was his first run-in with the criminal justice system, the court was of the mind that he could have avoided jail time entirely even if convicted at trial. Salazar, No. 11-11-00029-CR, slip op. at 3.
Even without the strong possibility of deferred adjudication that the court perceives, “It 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 into a guilty plea that would result in certain deportation, separating him from his family and the opportunities that come from being a legal resident of the United States.” Salazar, No. 11-11-00029-CR, slip op. at 5.
Moreover, the court credited Salazar’s testimony “that, had he known he was definitely going to be deported, he would have fought the criminal case.” Salazar, No. 11-11-00029-CR, slip op. at 3. Accordingly, “We hold that Salazar established that he was prejudiced because he would have gone to trial given the correct information about his deportation status and because a decision to reject the plea bargain in favor of a trial would have been rational under the circumstances.” Salazar, No. 11-11-00029-CR, slip op. at 3. He thus satisfied Strickland’s second prong.
The court added a bit of dicta that merit emphasis. It noted that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Salazar, No. 11-11-00029-CR, slip op. at 3 (discussing Padilla, 130 S. Ct. at 1483). This is significant insofar as it implies that Padilla is inapplicable to criminal defendants who do not have a “right to remain in the United States” that can be preserved. Most obviously this would include undocumented people (EWIs, overstayers, non-immigrant visa holders who violate a visa condition).
It might, however, also include all non-immigrant visa holders given that their stay is time-limited by the terms of their visa (though some NIVs allow indefinite renewals, they all impose a defined time period for which the visa may be granted). Also, a non-immigrant who seeks renewal or extension of the visa must be admissible and commission of a wide range of criminal offenses renders a person inadmissible even if not convicted. INA § 212(a)(2)(A).