it please the court some counsel i am assistant attorney general lindsay on behalf of people the defendant has failed to prove that he was denied effective assistance of counsel for three reasons first requires a heightened warning about presumptively mandatory removal only where that consequence is clear from the face of the removal statute and here it was not second even if some crimes are so clearly crimes involving moral turpitude that they require a heightened warning under the defendant's burglary conviction here was not so clear and third even if a heightened warning were required in this case the pennant has failed to broad classifications of crimes from those crimes identified in the statute itself and the majority approvingly cited justice alito is concurrence that highlights crimes involving moral turpitude as the quintessential example of a class of crimes that are not so clear from the removal statute that they require a heightened warning and that counsel cannot reasonably be expected to predict the removal statute does identify a number of crimes on its face that would subjected defendant to presumptively mandatory removal they include controlled substances offenses as in the itself firearms offenses  support certain domestic violence crimes human trafficking and other specifically enumerated offenses it's those enumerated offenses that are so clear from the statute that p d f requires a heightened warning crimes involving moral turpitude in trying trast our general classification of crime and one cannot determine the scope of that class he shot him just by reading the statue so the most straightforward reading of idea is that the entire class of crimes involving moral turpitude along with other general classifications of crimes such as aggravated balinese are not so clear to criminal defense counsel that they require a turpitude do not so clearly result in mandatory remove all that requires a heightened warning and that is so even if research with lead defense counsel to conclude that the crime may be a crime involving moral turpitude compare her client's specific criminal conduct to the conduct of other individuals who have violated other statutes in other jurisdictions so defendant's proposed standard essentially expects criminal defen counsel to possess the knowledge of a seasoned immigration practitioner and he's setting as a constitutional floor under the sixth amendment counsel's ability to discern the exact contours of an undefined term he offers no line for when a crime is so clearly a crime involving moral turpitude that a heightened warning is required under patea and in failing to offer a line he actually ends up erring on the side of misinformation because it's always correct for criminal defense counsel to warn her non citizen client that a guilty plea could result in his removal from the country in that situation the client so advised could consult with an immigration attorney and and weigh the options before him but a warning that if the client plead guilty he will be removed from the country may well be incorrect and that in  advice has its own negative consequences for the client so in less the law's unquestionably clear that the consequence of the guilty plea will be presumptively mandatory removal we should not put criminal defen counsel in the position of having to predict what federal authorities will or will not do even plea with trial counsel in this very case wasn't certain that defendants burglary conviction was a crime he had conducted research and after conducting the research he had not found a clear answer to what that term means but that he hadn't had concluded that the defendant's burglary was quote probably underneath the rubric of moral turpitude if probably is about as certain as we can expect defense counsel to feel and that does not meet p d s requirements for a heightened warning so if this court reads this requiring a heightened warning in for any crimes other than those identified in the removal statute itself then the court should hold that crimes such as defendants here that  satisfy the categorical test do not require the heightened warning instead they require only a general warning of the risk of immigration consequences now even if the court were to hol that defendant was owed a warning of presumptively mandatory removal in this case he's failed to demonstrate prejudice under strickland after pedia defendant still bears the burden of showing that there's a are very slim chances staying in the country i would note that defendant was it did by an interpreter throughout all of his proceedings in the court and in his meetings with counsel in case that wasn't clear to the court and when defendant testified under oath at the plea hearing he never claimed that although he was warned if you plead guilty you could be removed from the country it would have changed his mind ha  he been warned if you plead guilty your removal will be presumptively mandatory defendant never cited his family as a reason that he wished to stay in the country he never claimed to have particularly strong ties to the united states and in fact it only been in the country for a few months at the time he committed the crime and when he subsequently pled guilty he's never claimed that he would face persecution were he to return to that minikin republic and he didn't articulate a plausible defense to the crime charged when he was asked directly at the plea withdrawal hearing why he pled guilty he said that it was because he didn't think he had a defense to the crime charge and that's consistent with what he told the court at the plea so nothing about counsel's warnings or lack there of changes the reasons given by defendant himself for pleading guilty all of that has to be weighed along with the fact that here we have overwhelming evidence of defendant's guilt and that we know he was on notice that immigrations and customs enforcement believed he was removable based upon the crime charged  which when we look at i think what what we have to ask is what would prudent defense counsel do in this situation to determine the immigration consequences for her client and and i think that defendant is wrong to suggest that defense counsel would automatically jump to looking at burglary predicated on that defense counsel doesn't have the path laid out for her she doesn't know that perhaps that is the defining characteristic that is going to change whether this is presumptively mandatory removal or some other category and so i think that prudent counsel would first have to educate herself on what the test is for determining whether a crime is a crime involving moral turpitude she would find this three part  test she would have to start at step one and look at the crime that was actually charged which is here burglary she would find that it was not categorically a crime involving moral turpitude and then would have to expand her research and should this broad ranging national research involving burglaries educates that have different wording different factors comparing her client's conduct to other individuals and i think that's where we very clearly have gone our field of seeing clear and explicit as required by the and it's it's the same problem  that you know it's a familiar problem in strickland avoiding the problem of hindsight we can't look at the conclusion defendant has reached here and say well defendant found these cases therefore it was clear we have to look at the reality is that defense counsel is facing and and it's also important to remember here on the prejudice pronk that that we are comparing the difference between no warning and some warning we're comparing the difference between a warning that if you plead guilty you could be removed from the country and the warning if you plead guilty your removal from the country will be presumptively mandatory and it's defendant's burden to provide rational reasons why he would plead guilty after having been told he could be removed from the country but he would not be guilty if he had been told if you plead guilty it will be presented a mandatory he was given the opportunity to provide those reasons under oath at the plea withdrawal hearing and he failed to says i that burden and for that reason and and the other reasons particularly looking at that the most straightforward reading of the dia in this case we would ask the court to reverse the judgment a lot of if there's no further question than there are any questions counsel thank you at issue in this case concerns crimes involving moral turpitude now the defendant has acknowledged that sometimes it's hard to determine whether a particular crime is a crime involving moral turpitude the state has relied heavily on cases where it has been hard to determine whether a crime is a crime involving moral turpitude so for example it has but this case does not involve one of these marginal cases and when i say marginal i'm using language from the supreme court's decision in jordan versus george that decision is important in this case because the argument an analysis which i think this court would find helpful looking at the history of the term looking at the case law from the states and concluded their product historically then a crime to know that that is wrong inherently wrong is not equate to being so sink clear and explicit language of the immigration statute that a mandatory statutes and case law there's another part of the dia that is critical in this case and that the state overlooks in arguing that we must look soley to the removal statute to determine whether the crime his out one that will result in automatic deportation video also mentions that it expects counsel to look at the the attorney general counsel should look at the practice guides to see if he will fall within that waiver situation the court took that but no and moved it into the text of the decision pretty up meaning that the court believed that was an important addition in consideration in these matters is the older case cited by the  pled guilty to had counsel factor the fact that that would lead to deportation of my client my client could have tried to work out a plea deal to simple burglary yes your honor what happened in this case was that the defendant lived with his wife in a house where the neighboring building was an occupied but  there was no locked door to the house to the building the defendant went over to look at the horses and according to him he said no an order coming from the building open then locked or which means that anybody could have entered that building and simply looked around and came back out that is what what his version of what was the state's version   according to the defended he actually found those items later now the reason that the state knew that he may have taken these items all of this was from what he told his wife which would have been protected under the marital home and so i understand and correct me if i'm wrong that the judge in this case at least two defense lawyers in the stable feel compelled to become familiar or experts in the immigration law there's a certain set of crimes involving moral turpitude that are in  category where it is understood without any analysis that they are crimes involving those would include include fraud as the same court explain in jordan they would include rape and counsel should have known that that is a crime involving moral turpitude in this case because of this court's decision in re him that's a decision that every lawyer in the state knows and it's a decision where this court stated exposed to percent of lee mandatory deportation counsel was ineffective for not informing his client of this possible outcome and at a minimum trying  negotiate a plea to call trespass to property which would not have resulted in deportation consequences because it does not involve that simply to summarize yes there was there it's for the court to determine whether under the circumstances it would have been rational for the defendant to reject the plea that is the test does not require can the court take into account the fact that on the defendant never did make this statement in making that determination your honor the the request for a new trial or for a if those matters are not already baked into the motion to withdraw it almost as goes without saying that the defined once a new trial or wants to plead against a lesser offense that will not result in deportation there's no othe i'm finally ruling in favor of my client under these under the reasoning that i've just proposed to the court would not force or suggest to the feds lawyers in the state that it's necessary to become experts in criminal and immigration law or were representing non citizens of this case is an easy case wasn't within the easy part of the deal because that is so clearly a crime involving moral turpitude so for these reasons reiners we would ask  please the court it seems like the main difference in in the reading of media between the parties really boils down to the distance between a case where counsel could ultimately reach the conclusion that the crime charged was a crime involving moral turpitude and what is actually  and explicit the defendant just point in the court to jordan v did george and said that that shows that there are crimes involving moral turpitude is is not a difficult term to understand but jordan feed to george holds that that term is not void for vagueness there is a massive chasm between what's not weighed for vagueness and what is seeing clear and explicit and ultimately concluding as as one might in this case that defendants particularly crime was a crime involving moral turpitude does not mean that it was a sink clear and explicit to defense counsel were again following into the trap of hindsight and saying while doing all this research this research that is taking over one hundred of pages of briefing by the parties before this court to lay out what counsel would ultimately find once we make that conclusion aha this was a scene clear and explicit but that's not the case irresponsible for a defense counsel in this situation to just decide that i've met as a matter of common sense she's going to advise her client that he will be removed from the country if he guilty because she thinks common sense says this is morally turpitude this murder if we are if we put aside the most straightforward reading  pythia which is that crimes involving moral turpitude just aren't clear enough to require a heightened warning if we put that aside murder is a good example of a crime that one might be tempted to say common sense says this is morally turpitude is that actually supports the people's position so the morally turpitude missed part of murder is is the killing someone aspect of that crime and one cannot violate the murder statute without killing someone therefore murder is categorically a crime involving moral turpitude whereas burglary is not and again prudent counsels going to start with the crime charged she's not going to start with that because she has no basis to think that that is going to be the defining characteristic of the crime ch defendant mention to the court that another basis for counsel's ineffectiveness in this case was the failure to charge bargain and he fails to respond to the state's are human and are reply brief that actually did defense counsel could not have charged arkan in this case and this is all tied up in how complicated crimes involving moral t the fact that there is a circuit split amongst the federal circuits and that within the seventh circuit it was defendant specific conduct that was determinative in this case and because the immigration court can look at all of the evidence of defendant's conduct including the police reports in this case to determine why he was arrested in charge and they would see that he was arrested and charge because he illegally entered a building and he removed personal property that qualifies as a crime involving moral turpitude so counsel could not have charged bargained in this case moreover the the marital privilege would not have to tract it from the overwhelming evidence in this case at most two statements would have been excluded under the marital privilege one was that defendant told his wife that he had attained the ring and earrings in the dominican republic as something having to do with his graduation from school that was that would be potentially excluded also potentially excluded would be his wife's statement she defendant at the time he was entering the building that he shouldn't do that because he get in trouble everything else would have been including the found inside mission to the police that he had illegally entered the property prior to the property that ring and earrings being missing he said that he entered the building because he thought it smell bad and he wanted to investigate we would have the personal account of his wife watching him enter the building at that time multiple accounts of people viewing him with the missing personal property his admission to the police that he did possess the missing personal property and then him leading the police back into the house and taking them to the personal property where he admitted  again illegally entered the house and returned it so the evidence here was overwhelming and any exclusion under the marital privilege wouldn't have changed that of the just  that that takes you to at least the second step of the three step test for determining what is and is not a crime involving moral turpitude it's not even a separate subsection under the burglary statute the crime is burglary and and there's no reason why again feeling this from the viewpoint of reasonable defense counsel defense counsel would start with researching whether theft and then the prejudiced issue of counsel indicated that the fact that the defendant would not have taken the deal if he had known about the deportation he indicated that the baked into the motion itself i think he's he's absolutely incorrect about how the prejudice analysis should be conducted one this course for close the argument in people of hughes that it's enough to say in your motion i wouldn't have pled guilty had that you have to do more you have to demonstrate up a rational credible reason why you would have done that and his approach would gut the prejudice requirement under idea because the court could always objectively sermonize potential reasons why someone might want to stay in the country he has to do more he had the opportunity to do more and he did not provide those rational reasons and even in pretty itself the court noted that p d s had been in the country for already years it was in every way his home it was where all of his familial ties were he had served his country in vietnam and there the court still said we have to send this back for hearing for patea to tell us what his reasons were if if defendant was cracked about how to approach the prejudice requirement the u s supreme court would not have needed to remand video for further investigation it would be enough to say well in th situation he's been here for forty years that could be rational so i think he's he's wrong defendant had to do more here if there's no further questions without court to reverse the judgment below thank you