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Indiana Supreme Court: IAC Where Lawyer Marks ‘Not Applicable’ to Immigration Consequences Warning on Court’s Advisement Form Without Knowing Client’s Immigration Status

by David Reutter

The Supreme Court of Indiana held an attorney rendered ineffective assistance by affirmatively marking ‘not applicable’ to an immigration consequences warning on the court’s standard advisement form when he neither knew his client’s status nor asked him. 

Angelo Bobadilla, 19, entered a guilty plea to misdemeanor charges that stemmed from stealing $20 worth of underwear and T-shirts from a Walmart and marijuana possession, which resulted in suspended sentences of one year and 180 days. Bobadilla left the courthouse the same day thinking the matter was behind him. He soon learned following a probation violation that the plea subjected him to deportation after he consulted different legal counsel. Bobadilla immigrated to the United States from Mexico at age 9, and he was a “Dreamer” under Homeland Security’s Deferred Action for Childhood Arrivals program.

That information compelled him to promptly file a motion for post-conviction relief alleging his attorney was ineffective for failing to inform him that the theft conviction and resulting one-year sentence amounted to an “aggravated felony” under federal law, making him deportable. The plea court denied the motion after a hearing where counsel admitted to writing “N/A” next to the advisement on citizenship status without asking Bobadilla about his citizenship or immigration status. The arrest warrant noted Bobadilla was born in Cuernavaca, Mexico, and it was given to counsel with discovery documents.

The plea court ruled counsel was not ineffective because he “did not know, and had no reason to suspect, that [Bobadilla] was not a U.S. citizen.” ICE took custody of Bobadilla on May 3, 2017, and it issued A Notice of Intent to Issue a Final Administrative Removal Order. Bobadilla filed an emergency motion to correct error and requested an expedited hearing, as he could be deported as soon as May 31, 2017. The plea court denied the motion on May 15. Bobadilla was deported, and his whereabouts are unknown.

His attorney pressed an appeal. After the appellate court affirmed, the Indiana Supreme Court took the case. According to the Court, the specific legal question before it is: “When counsel is unaware of a client’s citizenship status, under what circumstances will counsel’s failure to inform a client of deportation consequences be deficient performance?”

Before answering that question, the Court warned that in such cases “unilaterally marking ‘N/A’ next to a standard advisement on immigration consequences amounts to deficient performance. The arrest warrant “suggested” Bobadilla may not be a U.S. citizen, and that should have halted counsel from making such a marking without actually knowing the answer.

Where a standard form contains an advisement required by Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel can “render competent performance … either by explicit inquiry (asking the client) or implicit inquiry (letting the client read and mark the advisement).” Counsel did neither here, and thus his performance fell below the standard required by the first prong of the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984).

As to the trial court relying on “Bobadila’s name, accent, familiarity with U.S. customs, and the ability to read and speak English,” the Indiana Supreme Court said that living in such a diverse country makes “these simplistic observations lose probative value in a citizenship inquiry.” The Court provided a solution for such situations: “The best practice is to never assume citizenship: always ask.”

Turning to the prejudice prong of the Strickland test, the Court found Bobadilla was prejudiced by counsel’s deficient performance. The Court reasoned that had Bobadilla known of the immigration consequences of his guilty plea, he would certainly have opted to go to trial.  And even if he were convicted, the Court explained that the lawyer would only have to convince the judge to sentence him to 364 days instead of 365 days and thus it “would have taken deportation off the table….”

Accordingly, the Court reversed the post-conviction court and remanded for further proceedings in accordance with this opinion. See: Bobadilla v. State, 117 N.E.3d 1272 (Ind. 2019). 

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