State v. Jeminez, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 15, 2020)

In this Stokes County case, the defendant was an undocumented Mexican citizen living in North Carolina. In 2010, he was charged with felony drug offenses and pled guilty. Defense counsel advised the defendant that there “may” be immigration consequences as a result. In 2017, he was arrested by immigration authorities and filed a motion for appropriate relief (“MAR”), alleging ineffective assistance of plea counsel under Padilla v. Kentucky, 559 U.S. 356 (2010) (holding that when immigration consequences stemming from a criminal conviction are clear, defense counsel must correctly advise the defendant of those consequences as a matter of effective assistance of counsel). The defendant argued that his drug conviction clearly made him ineligible for cancellation of removal proceedings, subject to mandatory detention, and permanently inadmissible to the United States under federal law. He asserted that he would have not pled guilty but for the erroneous advice of counsel.

The trial court initially denied the MAR without hearing. The Court of Appeals granted certiorari and unanimously reversed, directing the trial court to conduct a hearing and determine whether the defendant’s plea was knowing and voluntary and whether the defendant received ineffective assistance of counsel. On remand, the trial court again denied the MAR following an evidentiary hearing. It determined that while trial counsel’s advice was objectively unreasonable, the defendant (as a person eligible for deportation with or without a criminal conviction) could not demonstrate prejudice. The trial court did not address whether the plea was knowing and voluntary. The defendant again sought appellate review, and the Court of Appeals again reversed.

Regarding deportability based on the drug conviction, the relevant federal statute (8 U.S.C. § 1227(a)(2)(B)(i)) did not apply to the defendant. That statute covers people lawfully admitted into the county who are convicted of a drug crime, and the defendant was never lawfully admitted. As such, there could be no deficient performance by trial counsel in failing to advise on the impact of this statute, and the trial court correctly determined that the defendant could not show prejudice.

The defendant also pointed to the federal statute imposing mandatory detention for aliens convicted of a drug offense (U.S.C. § 1226(c)(1)(A)) as basis for the ineffective assistance claim. That argument was not raised on appeal and was deemed abandoned.

 However, the federal statute rendering one convicted of a drug offense ineligible for cancellation of removal (U.S.C. § 1229b(b)(1)) may have applied to the defendant. The matter was remanded to the trial court for it to consider the potential availability of cancellation of removal for the defendant. If the defendant can demonstrate that he would have qualified for cancellation of removal absent the conviction, then the application of that statute was “truly clear,” and trial counsel would have had a duty to correctly advise on its operation. If the trial court finds that such deficient performance occurred, it would then need to determine prejudice by analyzing whether the defendant would have refused to plead guilty and gone to trial but for the erroneous advice.

The drug conviction also clearly made the defendant permanently inadmissible to the county under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and trial counsel’s failure to advise on this point was deficient. On remand, the trial court was instructed to consider prejudice by examining the impact of this erroneous advice on the defendant’s decision to plead guilty.

(2) The earlier remand by the Court of Appeals had directed the trial court to consider both whether the defendant’s plea was knowing and voluntary, and whether the defendant received ineffective assistance of counsel. The trial court failed to consider the voluntariness of the plea and was again directed to make findings and resolve that claim on remand.