(B)

Sample Warning by Counsel.  A sample warning of the exact immigration consequences that will flow from a firearms conviction is the following.  Jose has lived in this country as a lawful permanent resident for 30 years, and is married to a U.S. citizen.  He is being offered a plea of guilty to a misdemeanor charge of carrying a concealed weapon in violation of Penal Code § 12025.

 

            He should be told:

 

            "If a noncitizen enters a plea to a firearms charge, even if he or she is a permanent resident with U.S. citizen relatives who has lived here for 30 years, the conviction will have the following immigration consequences:

 

"a.  He would become removable without doubt.  (8 U.S.C. § 1227(a)(2)(C).)

 

"b.  upon removal, his lawful permanent resident status would be revoked.

 

            "c.  After removal, he would become inadmissible for five years from the United States, i.e., he would be prevented from re‑entering the U.S. on any basis whatsoever unless he can get a waiver of inadmissibility.

 

            "d.  If he re-enters the U.S. after deportation after being convicted of this offense, he would be subject to arrest for the federal offense of illegal reentry after deportation, and could be sentenced to federal prison for up to 10 years.  8 U.S.C. § § 1326(b)(3), (4).

 

            "These adverse immigration consequences will happen.  Once convicted of this offense, no other result could occur for this defendant, unless s/he qualifies for the limited form of relief in immigration court called 'cancellation of removal,' and is granted this discretionary relief from removal.  8 U.S.C. § 1229b."

 

            PRACTICE TIP.  This process should involve analyzing what immigration relief your client might be or have been eligible for.

EIGHT COURTS HOLD PADILLA RETROACTIVE
United States v. Obonaga, No. 07-CR-402, 2010 U.S. Dist. LEXIS 63872, 2010 WL 2629748 (E.D.N.Y. June 24, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625 (E.D.Cal. July 1, 2010); United States v. Chaidez, 730 F. Supp. 2d 896, 2010 WL 3184150 (N.D.Ill. 2010); People v. Bennett, 28 Misc. 3d 575, 903 N.Y.S.2d 696 (N.Y. Crim. Ct. May 26, 2010); People v. Garcia, 29 Misc. 3d 756, 907 N.Y.S.2d 398 (N.Y. Sup. Aug. 26, 2010); People v. Ramirez, 29 Misc. 3d 1201[A], 2010 NY Slip Op 51661[U], 2010 WL 3769208 [N.Y. Crim. Ct. 2010]; People v. Ortega, 29 Misc. 3d 1203[A], 2010 NY Slip Op 51679[U], 2010 WL 3786254 [N.Y. Crim. Ct. 2010].

Other

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
People v. Shokur, 205 Cal.App.4th 1398 (May 16, 2012) (giving of Penal Code 1016.5 advice, which defendant said he understood, precluded him from showing that he did not understand those consequences).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Ex Parte Gonzalez, No. CR-395-08-J(1), slip op. at 2 (Tex. Dist. Ct. Aug. 9, 2010) (where defense counsel advised her client that pleading guilty to a theft conviction may result in deportation, when in fact the theft conviction can readily be determined to be an aggravated felony by simply reading the plain and clear language of [INA 101(a)(43)(G),] 8 U.S.C. 1101(a)(43)(G), counsels failure to inform her client that the INA specifically commands removal for individuals convicted of an aggravated felony constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Rampal v. Rhode Island, 2010 WL 1836782 (R.I. Super. Ct. Apr. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Garcia, 907 N.Y.S.2d 398, 403 (N.Y. Sup. Ct. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).