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Post Conviction Relief to Avoid Deportation


by in Criminal Appeals, Criminal Defense

Aliens who are convicted in New Jersey of certain crimes will be issued a “Notice to Appear” by federal authorities. If the defendant was not given proper notice that their plea would lead to deportation/removal, a post conviction relief application may be appropriate. A New Jersey PCR lawyer can guide you through the process.

Unlike most other areas of criminal law, both New Jersey and federal courts in recent years have softened on this issue. The real underlying issue is whether the defendant received effective assistance of counsel. While this argument can be made on direct appeal, it is more appropriately raised in PCR proceedings. My office handles these types of cases. Give us a call for an evaluation of your case.

Under New Jersey law, ineffective-assistance-of-counsel claims “are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.” State v. Preciose, 129 N.J. 451, 460, (1992).

For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that “[defense] counsel’s performance was deficient,” and that “there exists ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at 463-64 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984)); see also State v. Fritz, 105 N.J. 42, 58 (1987).

When a guilty plea is part of the equation, the New Jersey Supreme Court has explained that “[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel’s assistance was not ‘within the range of competence demanded of attorneys in criminal cases’; and (ii) ‘that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pled guilty and would have insisted on going to trial.’” State v. DiFrisco, 137 N.J. 434, 457 (1994).

Both at the federal level and in the State of New Jersey, recent cases have redefined the standard of conduct expected from a criminal defense attorney in representing aliens. Padilla v. Kentucky, __ U.S. __ , 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), State v. Nunez-Valdez, 200 N.J. 129 (2009).

In Padilla, the United States Supreme Court held that the failure of an attorney to advise a client that his criminal conviction may lead to his deportation is sufficient to satisfy the first prong under Strickland. Padilla, supra, ___ U.S. at ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299.

In Nunez-Valdez, our Supreme Court came to a similar conclusion in the context of a scenario in which the attorney provided the defendant with erroneous advice about the immigration consequences of his plea. Nunez-Valdez, supra, 200 N.J. at 141.

More recently, the Appellate Division expanded the responsibilities of criminal defense attorneys even further. In State v. Gaitan, 2011 N.J. Super. LEXIS 22, 8-9 (App. Div. Feb. 7, 2011)(approved for pub.), the Appellate Division held that giving “no advice” to an alien client is akin to giving bad advice. The court in Gaitan supported its reasoning by citing Justice Stevens in Padilla:

[a] holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available.
Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement…”

When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.

Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.

It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strickland analysis…”

[Gaitan, supra, at 8-9; quoting Padilla, supra, 559 U.S. at , 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.]






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