proceedings i want to thank everybody for dedicating their time and attention to this matter today you know covert it has dealt us a lot of curveballs and changes in how we practice law and those can be very difficult but these matters are important  and he and i are both grateful that everybody has taken the time and effort to hear this and have a region where undergoing very difficult circumstances i did find that the the curves thrown by covert offer a little parallel in this case because i'm in two thousand and ten the supreme court of the united states threw a bit of a curveball into how criminal defense attorneys represent folks who had underlying immigration matters as  lawful permanent resident of the united states for many years of that residency has now expired he is fearful of even reapplying for residency because of the conviction in this case and the potential for him to be removed from the united states because of a few areas of the law are more complex than the integration of immigration and state criminal law want to comes to narcotics convictions in the immigration context often the most harsh consequences are not felt in the state criminal courts the results in the immigration courts after the fact mr derogate will find himself in that position  withdraw guilty plea those motions can fall under discretionary review as a standard of when we talk about instances where constitutional rights may have been based the majority of its ruling denying winstrol on the basis in effect of assistance of counsel and in the hair rodriguez decision and while the hair rodriguez decision takes the conviction the question of aggravated felony or remove ability related to a controlled substance it does not remove the analysis of movability under any of the other grounds of remove ability that the federal government can remove a permanent resident from the united states my particular concern is within the statute i am a one thousand two hundred and twenty seven small a numeral too big to be little i little ott and that is a conviction related there is the ground of remove ability is for anybody who can be shown to be a user of user  hailed him to immigration court mr derogate can be held without bond for some time while he requests relief that will be granted to him because it is automatically removable under those grounds and so on the basis of a conviction that no serious custody time was sought and i believe the conviction had four days with credit to serve so there is no additional cost to the time beyond the arrest mr drone now faces the potential of significant custody time in him in i and will from the united states if he is brought before him gration authorities crap i can't think of a consequence that could be worse or more harsh in relation to a conviction that initially was supposed to leave mr gerard all with nothing on his mitigate or qualify or restrict and have the benefit promised under that statute as it related to mr girard of immigration background in the potential for prejudice and immigration cases sudarat has lived in the united states since it was a young child he has no formal home and in mexico he does x some spanish to be very difficult in terms of employment to get by if he would return home and he would have no life to dream court rules and probably because he knew he wasn't getting any straight answers about how the conviction was going to affect human terms of his immigration you look at the testimony of mr toronto's public defender when he says well mr toronto said he'd get around this by marrying his girlfriend and getting citizenship that way that's illegal and possibility you get citizenship from going through the natural ization process you cannot get citizenship alone by virtue of marriage although if you are married it does heat up the process from three years to five years there are requirements that have nothing to do with marriage to naturalized in the united states i see that my time or disability on your walk and what he's focused public defender is public defender told them you're going to be out of here and but maybe there's some relief maybe there's some discretionary relief and left him with the wrong impression that he could fix citizen ship i s i expect the state to make a lot about remove ability being the only issue that we need to consider here that's not what the d s s the d a s said that they categorically would not they would not remove importation categor exclusion from admission to the united states or denial of a naturalized ation what is it about that that didn't remove any misapprehension of the law or facts about the consequences of his answer is clearly well he is removable from the united states on the basis of conviction and only if the united states is not able to serve him with and because they don't have the resources to do so that he would avoid judgment  so as this court has recognized and i hope they don't print mispronounces a laurie you know when you undertake to duty to advise of their consequences you have to get that right and using the word may  still appropriate at this time as you indicated there there is no guaranteed that one would be allowed to stay or do that one would be deported he remained in the hands of the immigration division  the mandatory nature of removal the consequence to naturalization consequence of mandatory bond none of those are discretion none of those are discretionary as a result of these of this plea bill those are mandated responses it's the only thing that could save him this is a lack of resources it's not that the love makes it discretionary that the government simply can't make how can you say in your brief m page thirteen that the court the state and the defense counsel all insured defendants application for citizenship would be denied when the court a hments and defense counsel all supported the defendant's decision he wanted to move this forward i think the defendant if he wanted to move it forward move wanted to move forward because he had some confusion about what the consequences immigration status of the because he was being told a couple of different things and i would respectfully point the court if some of the  for a year and that's my point from the record it appears that they were bending over backwards taking as much time all of the parties to properly admoni of the consequences of his plea if perhaps we have a difference in how we read the record judge because i read the status records are doing everything they can for him to complete his naturalization  to advise their noncitizens clients that the pending criminal charge carries a risk of adverse immigration consequences and nothing more than that as i read to this case based on what the trial court had before it what would you rather have the trial court  irregardless of any promises the state has proffered in its look this is for time probation the special probation i think the court has to say regardless of what's been set out in the statute if you plead guilty to this  according to the laws the way it's written under the i and he you'll be a little a lot of it so you're suggesting that a state court trial judge has to understand and know how federal prosecutors will implement a statute and advise accordingly is that your position i believe it's the same similar position that the th circuit took in the u s these doco who still did answer the question that is your position it is my position that every attorney in that room has a responsibility to make sure that the client the excuse me not the client the defendant knows and is aware of what they're pleading to and the immigration consequences that are mandatory as a result of the plea and that's not me nor did what did  and appropriate done in would to take away from this case if we were to rule in your favor we've henceforth for trial judges to simply say sir you will be deported or  that would create the opposite problem because there will be situations where a conviction won't lead to him and dettori deport as much as i as a litigator love bright line rules you know not i mean give me an example where it  and that's kind of my point you do this for a living and you're expecting a trial judge to know these things once again i'm just not i mean you know what the feds do is a moving target how do we create a structure to know what you're supposed to do i understand the difficulty here judge typically what i do what i'm trying to determine whether a case is auto removable or discretionary removable i look for the law and the circuit case and see what it says and what complicates matters is there's a could be i a matter of su su age that says a just because you're not removable under one ground doesn't mean you're not removable under all of these grounds and it gets back to you no podia didn't make this easier for anybody but it made it affirmative that we have to know what's going on with the consequences and immigration and the reason for that is because the i understand that's not the question we all understand the reasons behind it but what i'm trying to get you to tell me is how far does the trial judge office to some removeable basis that is unrelated to a criminal history why i think one needs the thing as a state the judge could look at the state and say state have you made sure that there is nothing in this play that's going to lead to mandatory removal and how would the state know that unless the defense attorney tells them why i would assume the state would have its clerks and staffs and attorneys do its own research and work with the defense counsel and not into the defendant's background i mean we're setting i think you're asking us to set up what i think is just an unreasonable standard one then  asking for a bright line test when we look at these motions to instruct clearly the case law states from the supreme court miss district it on a case by case basis taking up ector's into account i know that this court has recognized that the end percent gratian consequences the common as a result of a guilty plea or more than collateral and that the defendant has the right to know if it's a mandated removal in this instance extra that is the extra wrinkle of of the defense attorney did not just make that statement in a vacuum the defense attorney let him walk off thinking that he could remarry somebody and fix this issue the defen vacate hearing and i'm reading from eighteen to twenty four to the attorney speaking to mr garage my colleague said there may be some sort of immediate relief or immediate relief temporary relief i wasn't sure what type of relief she was but i did tell mr gerard all about that as well she advised you know worst case scenario if you can do the plea without mentioning the controlled substance and the actual war this was the defense attorney us lama i believe i'm pronouncing that wrong i'm sorry about that sort of it's not just that we can't just look at the one comment we he made we have to look at this in the context of the comments the state made that the standard terms and conditions of the plea apply and he accepted the plea right states the the state's appellate brief repeatedly references a negotiated plea agreement i don't know how you could say he wasn't sheeted for that's what he pled to and you know it's did he say anything on the record that i'm relying that you're going to vacate this conviction twenty four months down the road no but he relied on it because it was a statute ok circuit in which this venue or this jurisdiction is located this is a correct it is your honor and so if you had reviewed the case would you have determined that under federal law the defendant would not be rendered removal based upon that decision under the control substances that aggravated felony ground yes what other ground is there that supposedly your and substance user stanch you anybody who is deemed at any time to be a user user of narcotics can be removed from the united states i would point the court to a specific case could i ask why you said can instead of shall or will or must or invariably or most assuredly will be removed because i don't know if the united states government has the financial resources to implement what finance it had by the law since when does fine no financial stability or disability or ability relate to the word ham is there anything in the statute that says if we have the money to prosecute then you will go or you won't go or is there some sort of discretionary act there is while the maybe i'm making this more to responses to justice jorgensen's questions and it would seem to me that based upon your conversation or your comments to my questions then the bright line test unless a defendant wishes to be removed is that the judge should tell the defendant that he shall he will he must irrevocably presumed to be remova he pleads to any felony correct because according to your argument to me the section that you cited well ultimately result unless they don't one have the financial ability to result in a will shall must situation and i'm sorry in this understanding the question are a little better well my point is is that you were asked by justice jorgensen what would you suggest a bright line test to be and you just told me that the section that says that you will be removed if you are a user or habitually addicted or whatever according to your argument to us today this is mandatory unless three there are no money to do this is the fact that you're that's what i understand you to say are you saying there are you not saying that i'm not saying that a judge and perhaps i can just read the text for you and that will clear up the confusion under the drug drug abuse or in attics any alien who is or at any time after admission has been a drug abuser addict is deplorable and of something qualification about financial resources or any of the like so it's a must it's not a maybe it's not what if it's a must and that's my point if it's a must then according to your argument the trial court should have said you must you shall be or you will be or you must be removed if you plead to this yes by not doing so it created the misapprehension and confusion controlled substance correct yes like inherently and getting section four hundred and ten probation that doesn't mean you were an abuser it simply means at one time in one occasion you had a controlled substance on your person and how those two equate the i would point the court to case number  beyond the record of conviction into the transcripts and if you look at the stipulation in the pleat colloquy the stipulation of facts was that mr toronto can't pills that were not describe federal prosecutor immigration prosecutor would have to create a case i mean inherently that i take them routinely there's no time limit in that transcript how does that automatically your federal immigration burden of proof i would refer the court to case number three call on eighteen dash see the dash eight to two sailors are are in which a immigration court in ohio used a drug conviction from arizona to remove the defendant under the ground that i'm referencing using only that conviction  to well i think there's a difference between handing a certified copy of conviction and having to prove up the underlying evidence i would just again and i'm happy to upload the site to the court so it easy for the courts and i'm just presenting it to show an example of this happening before but if if i except your arguments then what you're saying is a trial judge two must simply say to every non citizen that you will be deported whether you will or not but they have to say you will be deported because you qualify under a mandatory and i represent the people of the date of illinois we come before you this morning to respectfully ask this court to affirm the trial court's judgment in that it denied to the defendant motion to  conviction and to address guilty initially we would point out that the trial counsel testified at the motion to withdraw and in his testimony counsel said that he spoke with immigration attorneys and he advised his client that in fact he was deportable based on the conviction i don't know the padilla requires more counsel coun advised him that there would be likely consequences as far as the operation of the controlled substances act the circuit court with constitute a removable conviction the th circuit is the highest federal court in this jurisdiction and there's no reason to believe that a trial court in illinois cannot rely on the seven circuits consideration of an illinois statute in light of the immigration and naturalization act so neither trial counsel nor the trial court did anything wrong in this case offender for ten probation one not impose any disability or disqualification by law on him when in fact there are a number of immigration consequences other than removal i guess on some level it seems to be unreasonable to construe a state statute that's talking about the north the normal the normal condition to go along with a conviction and saying that if in fact you succeed with this you no longer have a conviction on your record i think it is unreasonable to think of that as going beyond the state of illinois but how can you say defendant was operating under miss how can you say he was not operating under a mis apprehension of the law when in this case the defense counsel the state and the de t all engaged in we can see from the record intensive plea negotiations to preserve the defendant's immigration status when the federal immigration act at that time made it clear that such a plea to this charge made him deportable i think that goes to the fact the trial counsel explained to him that if he took the plea he was deportable i don't think anyone pull the wool over this defendant dies he was advised by the trial court that there was a possibility of deportation and he was advised by his counsel after talking to other actually talking the immigration attorneys that there was a danger of de portability i believe i believe that the record said that counsel used the to learn immigration treated as such that it is a conviction  i guess i have to have two responses to the st one is the same as i said before i think it's unreasonable to state that statute outside of the standard the standard situation where a criminal defendant successfully completes his probation and so we no longer have a record but the other the other side of this is based on the record of the plea i don't see any reason to believe that the defendant was ever told the underlying discussion of what for ten probation means such that there's i don't think there's any record record to believe that he relied on it and the fact that the parties continued the case for a year in hopes of helping the defendant reach a successful completion to his naturalization proceedings i don't think it has anything i don't know if it's simpler not because i don't think it's accurate and i don't think pedia requires a defendant to be told something inaccurately the basic truth is no state court can anticipate how federal where the th circuit has said that a conviction of this particular a controlled substance of controlled substances offense is in fact not deportable i think that the bright line that the defendant seeks is not going to help defendants because it's going to take defendant to trials where they're likely going to get more significant punishment then would be typically available in a negotiated guilty plea without any reason to believe that the plea is going to absolutely lead to their deportation well i your trial where we're going to trial but put it in the real world i don't think it's a trial tax i think it's a recognition that if a defendant pleads guilty he's already assuming responsibility for his conduct which in general i think is viewed as signs of rehabilitate a potential so i don't think it's a matter of a trial tax i think it's simply a matter of recognizing that a defendant is willing to accept responsibility for what he or she did and is willing down and i and i guess assuming for the sake of argument that the state has enough evidence to go to trial then if there is in fact a deportation consequence it will come about with that with the conviction one way or the  other i don't mean to sound flippant on this but my understanding of the facts of this case is that the defendant was pulled over for a traffic stop and the officer found the  kowtowed with you know there was prescribed somebody other than the defendant that seems to me that it would be enough to convict him a trial as well as that a guilty  i don't think that there should be a bright line test i think that pretty and it's progeny say that the consequent the possible consequences need to be laid out for a defendant i don't think there can be a bright line test because there isn't any way for a state court twin to supinate what's going to happen the state court can only say what can happen the state court can present the possibility it cannot present a certainty possible such that it will include all other permutations that might have been being more probable or i don't know that it is possible to present every possible pair mutation perhaps perhaps perhaps i'm simply looking at it too narrowly but i don't think that it is reasonable to expect either the state trial practitioners or state court judges to be able to understand the entire immigration and naturalization act and all of the various regulations that it encompasses i think that all of the state practitioner can do for his client is tell him the possibility that and he the defense counsel told the defendant that his conviction would be rendered him deportable the trial court similarly admonished the defendant the possibility i don't think a bright line rule works in the situation what about in any situation i don't think that it is realistic to go beyond that permutations i guess you'd say under the immigration and nationality act and in the abstract that may be true but when an individual when the court has taken jurisdiction over an individual and means to impose punishment on him potentially including custody time taking money not allowing him to have the right to bear arms etc they've also taken on the responsibility of understanding the profile of that particular person in terms of the bright line test i want to be really clear here i am not advocating a bright line test we're here on a motion to withdraw a guilty plea under state criminal procedure law  the review for that is abuse of discretion unless constitutional rights of them violated and then there's a stricter review that the court can employ i think that these cases a great these cases have to be taken on a case by case basis it is very complex that a lot of the courts to touch orders after putting a recognize that in this particular concept context this legal permanent resident pled guilty to a crime that made him automatically removable and it also subjected after the state offered a special kind of probation and he forfeit all of his trial rights in exchange plea bargains or matter of contract their special his contract the supreme court of illinois recognize that i'm not convinced that this case was a really clear one and in fact if you want to take the position that may her holds and that he's not removable well then he was told the wrong thing when he made the plea in fact on his his trial counsel testified that i told him it would only get worse if he goes forward well in my mind in terms of immigration that's an accurate if he's really not removable because of this they pulled him over and speeding he never challenged he had the right to do that he never did his trial counsel decided not to do that for whatever reason and the stipulation within the guilty plea doesn't reference the time frame in which he took pills or not so if there was going to be really as the state wants this court to believe no immigration consequence or that it's so confusing that it should be ignored well then he should have been told that he could have decided you know want to take it to trial if there's no immigration consequences because i might get this evidence process and you know there was no corpus to let the about how or when he to luck pills at the time he was arrested and beyond that there were no field sobriety tests of this officer really believe that he was under the influence while he and that matter in the immigrant to the united states received a pardon for a crime in georgia and he was still removed anyways because the pardon took care of three grounds for movability but for there are many many grounds of remove  the outcome of the deal i think whitfield is an important case and similar to this anyways things i have nothing else