This case concerns the adequacy of an attorney’s immigration advice to a legal permanent resident who entered a guilty plea to a burglary charge. The attorney advised his client that his plea “may” have an impact on his immigration status. However, the State concedes and we agree that the immigration consequences of the plea were clear—a conviction for burglary constitutes an aggravated felony and will almost certainly lead to deportation proceedings under the Immigration and Nationality Act “INA”. It follows that the attorney was deficient when he incorrectly advised his client that he “may” face deportation as a result of his plea.
Petitioner entered a guilty plea to a charge of burglary in the Superior Court of Gwinnett County on August 30, 2012. He was sentenced under Georgia’s First Offender Act, OCGA § 42-8-60, to six years in prison to serve one year, suspended upon successful completion of probation boot camp and ordered to pay restitution and a fine. Before petitioner entered his guilty plea, appointed trial counsel advised petitioner that a guilty plea to burglary “may” impact petitioner’s immigration status,1 and that petitioner should seek the advice of an immigration attorney. He also informed petitioner that he “could” be deported even if he received first offender treatment. During the plea proceedings, the State asked if petitioner understood that his guilty plea “may have an impact” on his immigration status and that he “may be deported as a result of this plea.” Petitioner responded affirmatively. Based on these facts, petitioner filed a petition for a writ of habeas corpus in the Superior Court of Gwinnett County, asserting that trial counsel was ineffective and that petitioner’s plea was not knowingly and voluntarily entered. In this regard, petitioner averred, inter alia, that his attorney informed him that a burglary conviction “could” result in deportation; but that, if he completed his sentence as a first offender, he “would not have a conviction for burglary”; and that, on the basis of that information, petitioner presumed he would not be deported as long as he successfully completed his first offender sentence.
