By Darren Chaker, www.Darren-Chaker.com
The court errs in denying defendant’s motion to withdraw his guilty plea based on inadequate legal advice as to immigration consequences. Bonilla, a 30-year resident of the U.S., pled guilty to federal charges of possessing an unregistered firearm and being a felon in possession of a gun. After Bonilla was indicted, his wife made inquiries of an investigator and attorney regarding the possible deportation consequences of a plea. The investigator referred her to the attorney. The attorney agreed to look into the matter, but did not do so prior to the plea. After the plea, the attorney informed Bonilla’s wife that the offenses were aggravated felonies and would result in Bonilla’s deportation. Prior to sentencing, Bonilla moved to withdraw the plea, asserting he would not have entered it had he known the immigration consequences.
The district court denied the motion, finding that trial counsel was not required to advise Bonilla of immigration matters, as deportation was only a “collateral consequence” of the plea. Subsequently, the U.S. Supreme Court, in Padilla v. Kentucky (2010) 130 S.Ct. 1473, found that trial counsel has a duty to give correct legal advice when the deportation consequence is clear, and extended the Strickland effective counsel guarantees to the passive omission of correct advice regarding the possibility of deportation.
Under Federal Rule 11(d)(2)(B) a defendant seeking to withdraw his plea before sentencing is required to show that the proper legal advice of which he was deprived could have plausibly motivated a reasonable person in the defendant’s position not to have entered the plea. The deportation consequences here met this standard. The court vacated the plea and remanded.