✈ Immigrant Facing Deportation Cannot Withdraw Plea Despite Getting Bad Legal Advice

In 1999 Javier Torres, a Dominican Republic immigrant, was arrested for distributing heroin within a school zone.

He admitted to “facts sufficient for a finding of guilty” and received a continuation without a finding (CWOF).

Over twenty years later, in 2021, he filed a motion to withdraw his plea. In this motion Javier claimed that he received ineffective assistance of counsel because the lawyer who represented him did not discuss the potential immigration consequences of the plea.

In most cases, admission to a serious crime will result in deportation. Lawyers are supposed to know of this and advise their clients accordingly.

The trial judge denied Javier’s motion and the case was appealed.

The Appeals Court upheld the lower court’s decision. First, they recited the applicable case law:

To establish that he is entitled to a new trial, the defendant is required to show that (1) by not advising him of the immigration consequences he would face if convicted of distribution of a class A substance, his plea counsel’s conduct fell below the standard of an ordinary, fallible lawyer, and (2) that shortcoming prejudiced him.

The court agreed that Javier’s counsel was ineffective. However, that did not prejudice the case’s disposition.

In the context of a guilty plea, in order to satisfy the prejudice requirement, the defendant has the burden of establishing that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. To establish that reasonable probability, at a minimum, the defendant must aver that to be the case. Having made such an assertion, the defendant must then convince the court that a decision to reject the plea bargain would have been rational under the circumstances. (Citations and quotations omitted.)

In the context of immigration and deportation,

To prove that rejecting the plea would have been rational under the circumstances, the defendant bears the substantial burden of showing that

(1) he had an available, substantial ground of defense, that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain;

(2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or

(3) the presence of special circumstances that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty. (quotations omitted).

Because the 1999 plea deal was fair and because the case against Javier was strong (police directly observed Javier distributing narcotics), the court concluded that he did not meet the requires to justify a plea withdrawal.

To read the full opinion, click the document below.