Encarnacion v. State
2014 Ga. LEXIS 713, 295 Ga. 660, 763 S.E.2d 463 (2014)
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Rule of Law:
An attorney's performance is constitutionally deficient when they advise a non-citizen client that a guilty plea 'may' lead to deportation, if the relevant immigration statutes make deportation a virtually certain and mandatory consequence of the conviction.
Facts:
- The petitioner, Encarnacion, was a legal permanent resident of the United States.
- Encarnacion was charged with burglary in Gwinnett County, Georgia.
- His appointed defense counsel advised him that a guilty plea 'may' impact his immigration status and that he 'could' be deported.
- Encarnacion subsequently pleaded guilty to the burglary charge.
- Under the federal Immigration and Naturalization Act (INA), a burglary conviction with a sentence of at least one year constitutes an 'aggravated felony'.
- An aggravated felony conviction makes a non-citizen subject to mandatory removal proceedings, with very limited opportunities for relief.
Procedural Posture:
- Petitioner pleaded guilty to burglary in the Superior Court of Gwinnett County, a state trial court.
- Petitioner later filed a petition for a writ of habeas corpus in the same Superior Court, asserting ineffective assistance of counsel.
- The Superior Court, acting as a habeas court, denied the petition, finding counsel's advice was adequate.
- Petitioner filed an application for a certificate of probable cause to appeal to the Supreme Court of Georgia, the state's highest court, which the court granted.
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Issue:
Does an attorney render constitutionally deficient performance by advising a non-citizen client that a guilty plea 'may' impact their immigration status when the conviction makes deportation a virtually certain and mandatory consequence under federal law?
Opinions:
Majority - Thompson, Chief Justice
Yes. An attorney's performance is constitutionally deficient when they provide equivocal advice about immigration consequences that are, in fact, clear and mandatory under the law. The court applied the two-prong test from Strickland v. Washington, as interpreted for immigration contexts by Padilla v. Kentucky. The Padilla court held that where the deportation consequences of a plea are 'truly clear,' the Sixth Amendment duty to give correct advice is 'equally clear.' Here, a Georgia burglary conviction is unambiguously an 'aggravated felony' under the INA, which makes deportation mandatory, not discretionary. Federal law also specifies that first offender treatment does not prevent a guilty plea from being considered a 'conviction' for immigration purposes. Therefore, advising Encarnacion that he 'may' be deported was affirmative misadvice because deportation was a near-certainty. This failure to provide accurate advice based on 'realistic probabilities' constitutes deficient performance under the first prong of Strickland.
Analysis:
This decision solidifies the application of Padilla v. Kentucky in Georgia, clarifying that a generic or vague warning about immigration consequences is insufficient when those consequences are legally certain and severe. It places a significant affirmative duty on criminal defense attorneys to understand the specific immigration statutes relevant to their clients' charges and provide direct, accurate advice. This precedent heightens the standard for effective counsel for non-citizen defendants, making it easier for them to challenge guilty pleas based on inadequate advice about mandatory deportation.
