## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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E x p a r t e P A U L I N O V E L A S Q U E Z - H E R N A N D E Z , A p p l i c a n t

O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S

F R O M B E X A R C O U N T Y

K E L L E R , P . J . , f

i l e d a c o n c u r r i n g o p i n i o n . Applicant alleg es that counsel fail ed to acc urate ly inform him that pleading g uilty would

cause two adver se immigra tion conseque nces: (1) make him ineligible to have his d ep o rt at ion proce eding s canc elled under a d i s cr etionary provision, and (2) make him ineligible to ever be admitted for e ntry into the Unit ed S tates. As the C ourt explains, applicant cannot show pr ejudice with respe ct to conseque nce (1) beca use he is here illega lly and thus subject to deporta tion reg ardle ss of his plea. But the Co u rt’s analy sis that applicant cannot show prejudice with respe ct to conseque nce (2) s ee m s problematic. I would resolve that issue by holding that applicant cannot show defic ient perf

ormanc e beca

use Padilla app li e s only to the deportation conseque nces of a plea.

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Padilla v. Kentucky , 559 U.S. 356 (2010). 1VELASQUE Z- HERNANDEZ CONCURR ENCE — 2

The Court say s that applicant suffe red no prejudice with respe ct to conseque nce (2) beca use “the likelihood of co n v i ction for the char g ed drug offense was high” and beca use “applicant does
not qualify for an exception under 8 U.S.C. § 1182(a) (2)( A)(i) (I I ).” Applicant’s failure t o qualify for an exception under the fede ral statute appea rs to be solely beca

use of the curr ent drug conviction. But that is applicant’ s point: absent the drug conviction, he would qualify

. I f it wer e shown that he had some other conviction that disqualified him for the exception, then I would ag ree with the Court that that disqualification would eliminate any prejudice , but I am not awa re of any other conviction. That l eave s us wi t h t h e C ourt’s st atement that applicant suffere d no prejudice beca use t he likelihood of conviction was high. L ikelihood of conviction is not the traditional test for measuring prejudice from a g uilty plea that is the result of an attorney ’s def i ci en t co n d uct. The usual test is “whe ther ther e is a re asonable probability that, but for counsel’s e rror s, [t he def endant] would not have pleade d g uilty to the char g ed offe nse and would have insisted on g oing to trial.” The habea s 2

court expressly found that applicant would not have pleade d g uilty and would have insisted on g oing
to trial if he had known that his ple a of no contest would preve nt him from ever leg ally re- enter ing the United States, so applica nt seems to have sa tisfied the applica ble pre judice standa

rd. Neve rtheless, ap p l i cant is not entitled to relief beca use he has not shown defic ient perf ormanc e with respe ct to the exclusion conseque nce of his plea. By its terms, t h e S u p re me Court’s holding in Padilla is limit ed to the deportation conseque nces of a plea. The case does not 3

Ex parte Harrington , 310 S.W .3d 452, 458 (Tex. Crim. App. 2010) (interna l quotation 2 marks omitted). Padilla , 559 U.S. at 369 (“[W] hen the deportation conseque nce is truly clea r . . . the 3 duty to give corr ect a dvice is equa lly clea r.”) , 374 (“[W] e now hold that counse l must i nform her client whethe r his plea c arr ies a risk of deportation .”) ( emphasis adde d).VELASQUE Z- HERNANDEZ CONCURR ENCE — 3

addre ss w hether an attorney has a duty to inform his client that his plea of g uilty might later

cause him to be ex cluded fro m admission into the Unit ed S tates. I n holding that counsel must inform a client about deporta tion conseque nces, the Supreme Court pointed to “the seriousness of deporta tion

as a conseque nce of a criminal plea, and the concomitant impact of deporta tion on families living lawfully in this country .” Depor tation disrupts a lawful immigra nt’s expectation of remaining in 4 this country

for the pe riod of time authorized by his entry documents. Appellant is not living lawfully in this countr y . He never acquir ed any rig ht to live in the United States or any rea sonable expectation that he would be allowed to do so, and any possibili ty that, absent his plea, he will be allowed to leg ally enter this country in t h e fut ure is purely specula tive. Padilla imposes no duty upon an attorney to inform an undocumented alien that being convicted of

a cr ime may

result in his not being a llowed re -entry into this country

. Wit h these c omments, I concur in the Court’s judgme nt. Filed: Oc tober 15, 2014 Do Not Publish

Id. at 374. 4