the court counsel the importance of accurate and legal advice for non citizens accused of crimes has never been more important as a matter of federal law deportation is an intricate part indeed sometimes the most important part of the penalty that may be imposed on non citizen defendants who plead guilty to specified crimes that is a direct quote from the video case decided almost exactly nine years there is concerns that about floodgate of litigation been open for post conviction remedies that clearly has not happened in order to force the and the issue before the court the single issue before the court today is whether the defendants trial counsel failed to advise him that a plead guilty would result in deportation the standard of review is to know of and in order to prevail mr doubtingly show two prongs the think that the record is sufficient for our our resolution i think it would be possible for you to vacate the conviction but i would still think the other alternative remedy and there disputes about what was evidence was available and what do the decision was rational or not based upon the amount of evidence against him and that may require an evidentiary hearing there is a case out of twenty four twenty fifteen case reviews for vegas case the ninth circuit where the court to decide the matter of law after see after permitting the district court to expand the record with an affidavit from counsel or counsel of defense counsel truck counsel no case concedes that all he said was there is a high probability rather than you will be deported in that case the circuit court vacated the conviction in this case the proper while we'd love to have it happen the appropriate remedy may be simply never daintree hearing and that's let me direct you to a couple of our cases first of all there's the twenty twelve case of abraham right out what does it tell us or not informed you will not be deported very distinguishable facts then from both of the eighth circuit cases the there well now in abraham it says abraham doesn't speed read the p s r but argues attorney was in  it's very different though from the pilots coming back and seen this plane is going down we're going to crash you're going to get off the plane at least if you judge people you're getting off the plane and in this case the analogy mr doubt was entirely rely upon his pilot the person who's going to get him through safely through the court system his attorney and instead of saying if you get on this plane if you take this plea you will be to forded he said just the opposite happened she was he was erroneous lee assured you will not be deported the first prong then of the test before the court the performance problem was established by the floor for adequate performance by trial coun in that case said you must advise the potential consequences you don't have to be specific you can simply say there are potential consequences unless the deportation is absolutely clear and in that case you have to be absolutely clear when you talk to your client in this case who is fairly straightforward he's mr doubt was convicted from behavior dating back and again he maintains his innocence back in july of sixteen of twenty fourteen he's convicted of a violation of eighteen section u s c section one hundred fifty one which amounts to essentially strong arm robberies what used to be called nouns interference with interstate commerce by violent means he's convicted of that and that's clearly an aggravated felony and aggravated felonies are listed as you will be deported if you're even though he maintained and always has maintained his legal permanent residency stand status he's still told you will be deported which is another distinction if i might with the case you decided to months ago the human is case in that in that that defendant was already a nice custody he'd already had problems with ice he knew he was having problems and all that happened before the guilty plea in this case none of that was presented mr das case so the two earlier pleas grimace are not in the record anywhere before us right there by him in the conclusions though is unroadworthy done and refuted uncounted and that is he was presented to separate plea agreements both contain deportation language and both times not signing that and he then got a i guess that is why they issued the questions i have in my mind it's kind of like something we deal with fairly routinely which is judge tells the defense has got fourteen days or she's got fourteen days to appeal the defendant comes last and say i told my tourney i want to file an appeal no appeal was filed it's my turn is fault then we have to have a hearing where the you find out well did they or did they but there's nothing in the record as far as i know other than his enough to expand the record with that and that didn't happen so that probably all the more reason to suggest that the appropriate remedy is in evidence or here well you know that the district court of course make sure short work of this although cites about four or five documents you know the paragraph that the district court writes why is that enough though because judge smith doing her job lou as she should be gives him due process warnings and says before you enter this plea i want to make sure that you're capable and competent and that your pleas knowingly intelligently and voluntarily made so i'm going to tell you there's a possibility it's not the same and that doesn't deprive this defendant of his six the moment right to effective representation of counsel does say and he affirms if you're if you are not a u s citizen you're guilty plea will result in your permanent removal from the united states and he marks yes and then and before her you know she has  advise his or her client that an offense makes him or her deportable or could potentially face immigration consequences as this court properly held in  does not require is that counsel provided by all based on this conviction you will certainly be deported because that gets in the into the realm of the immigration proceedings which are difficult to to predict but what about the reverse but this is the reverse case so all he's saying that that by my counsel is wishy washy i may be deported he's saying he told me i will not be deported if i plead guilty so or is there any case that deals with that situation yes your honor there is a case of the third circuit name is united states versus bozzio in that case the defense counsel advised the client that there was a possibility of deportation but it was his opinion that he would not be deported defense counsel decided to the fact that he was a legal permanent resident that he had many ties to the community and had been around for a long time while at the change of plea hearing the judge well backing up a little bit the plea agreement contain language stating that defendant may face immigration consequences that's one of the problems other than what you immigration consequences so i mean that i'm a criminal defendant says that there may be consequences the pre sentence report says i may be deported mr defense counsel what's going to happen or don't worry about that you're not going to be deported you've been here so long you don't have to worry about that if you plead guilty so what happens in that situation so well it it's a little i wouldn't say wishy washy but it's inconsistent there are points in the record where if as may face immigration consequences and then there are other points in the record such as the position petition that says you are guilty plea excuse me one second if you are not a united states fittest then in most federal felony cases your guilty plea will result in your permanent removal from the united states and more but but that's so tourney so you go to your turning said well what's that mean mean it means in most cases but you're the exception you're not going to be deported because you came here as a baby and you lived here for thirty years well your honor it's all if we do believe that argument i would then turn to what happens after the change of plea hearing when the p s r is provided to counsel the p s r explicitly stated as a result of the instant conviction the defendant will be subjected ministry to remove all from the united states and immigration proceedings will be commenced upon the defendant's release from custody it couldn't be more clear than that and at the sentencing hearing with mr gatt sitting next to her counsel confirmed that she had reviewed this with him that they accepted it and didn't have any objection while the opposition states that abraham cannot be applied in the case because the plea contained a waiver  of his ability to withdraw the plea agreement the government disagrees because the judge judge smith camp had not yet accepted the plea agreement so if counsel had reviewed to it and i'm sorry i lost my last my train of thought it well i'll think i'll follow up there with that yeah maybe i just read it a little bit differently i know that you're saying it will be removed and will be go through an immigration proceedings and it my understanding is that he had an immigration lawyer at least on the record there was discussion of him having an immigration lawyer so to me and combination that that paragraph plus the old put him put put him please place him in a location where he can be near his immigration counsel one reading of that is all right i've got my immigration proceedings now i'm going to go about my lawyer and i'm going to take care of this like my defense lawyer told me i could and i'm going to get to stay this seems like there's another way of reading that paragraph in conjunction with whatever with what else is happening i would agree your honor but regardless of the advice of counsel and to the performance problem i believe that both of those things definitively show that he cannot prove prejudice because he was aware or he to use language from the human is opinion he surely knew he was facing removal proceedings and once again the standard input underpay dia isn't that helpful advised that the defendant will or will not be deported it is whether there is a risk of deportation and most of the cases we've talked about will move for the supreme court's lead case i bet you're familiar with a weak case or leave vs united states june twenty seventh being chief justice roberts if you're not just tell  back to the point i was trying to make about the p s r and why abraham still applies at that point in time when judge smith camp asked whether or not the p s r had been had been reviewed with mr data and whether or not they accepted it there was still the opportunity for the appellant to state no we object to the p s r based on the removal language contained within it and based on that objection judge smith camp could have not accepted the plea agreement and the appellant would have been able to withdraw his plea agreement so for that reason then abraham does apply in this case  considered by immigration officials in determining whether you are deported it also stated previously iterated in most felony cases if you are not a us citizen you're guilty plea will result in your permanent remov the united states at the end of the petition mr dadt affirmed that he went over the petition with counsel and that all the answers were true and correct in the plea agreement mr that egg knowledged that there may be there's no evidence in the record nor could the government find any evidence of two prior plea agreements and the wording as stated in the plea agreement that he expected was the standard language used by our office at that time is that what you've just described part of the record that the district court consider or is this just by the way this is just by way of explanation so we're guarding the miss advice or his allegations of mis advice those statements are just that there are allegations and the record conclusively show that those allegations cannot be believed because they're contradicted by the record by the petition by the plea agreement by the plea colloquy and his affirmations to judge smith camp that he had been advised by the p correct advice what's assumed the attorney corroborates the tourney just comes and falls on his sword and says you or her i guess it's her and says yeah i'm i made a big mistake and i didn't think you'd be deported i told me it would be  ported and he told me i won't be guilty of if if if i'm going to be deported without make a difference it wouldn't make a difference your honor and that is because he has to prove both promise of strickland and he cannot pr the strickland prejudiced process as shown by the p s r and his actions at the sentencing where he showed he was aware he was facing immigration consequences but facing immigration consequences different than knowing you're going to be deported and that's different than having your attorney tell you you won't be sure you've got immigration consequences but what are those while don't worry about it you've been here thirty years well yeah that's for them that's for the person who just snuck across the border last year well your honor at th point we still don't even know if it is certain that mr doubt will be deported we know from his his allegations that he hasn't been able to renew his legal permanent resident card if that's true but he has not been subject to immigration proceedings at this time so we don't even know if he will be deported in this matter especially considering the fact that he is from sudan and it's unclear whether or not we are deporting to that country due respect i still haven't heard anything that says he was in the contradicts his allegation uncontroverted that he was told erroneous leo falsely you will not be deported you don't have to worry about it you've the comment about we don't know if he's going to be deported or not he may suffer the ultimate prejudice because also what's in his affidavit is he would never of agreed to a plea that involved deportation in part because of his family situation his father cited stroke is wheelchair bound he was living in his parents home at the time of his arrest his mother's a primary almost sole support for the family she works in a factory in omaha but his subjective belief again uncontrover vit that he will be murdered and i think is phrases chopped into small pieces so that is prejudice and that is something that is clearly established in the record so waiting to see if he's going to be deported or not is simply not adequate romney at least an evidentiary hearing to decide whether or not council traffic ounce of may fall on her sword in which case you asked earlier on or about your best cases there are two best cases they both cited in the of a felony his counsel moves to seal the records the judge the trial judge is now on the new do that any moves to seal it because of the immigration consequences and he's advised no i don't i'm not going to do that his trial counsel says well that's all right we're convinced that that that this mispresent of a felony case or conviction is not a deportable fats false erroneous conviction in that case the second circuit set aside the convert granted a writ of  quorum novus that nice circuit in a very similar case involving a twenty two year old defendant same age as mr dowd who rejected a plea agreement and that statement is in h counsel takes it upon themselves under the padilla case to say you won't be deported you don't have to worry about it and that is his allegation his ass more testimony in his affidavit in that case than he's entitled to rely upon that advice and entered into a police remove that says you might be deported is not the same as saying you will be deported and your pilot coming back to say this plane will crash if you want to get off if you don't want to get on the n the vega case emphasized that the council statement at sentencing is too late it's after the plea has already been accepted by the senate and for the end it also flies in the face of the consequences decision by this court