Benham, Justice.The State appeals the grant of a petition for a writ of habeas corpus in regard to appellee Jude Ebele Aduka, who is a citizen of Nigeria. The record shows in April 2007, appellee was arrested after being found with numerous counterfeit goods.[1] An indictment was handed down in 2009 and thereafter the State offered a plea deal which appellee rejected because of concerns he had about how such a deal would impact his immigration status.[2] On April 10, 2012, however, appellee pleaded guilty to a single count of offer for sale of counterfeit goods in violation of OCGA §10-1-454.[3] During the plea colloquy with the trial court, appellee stated he understood that entering a guilty plea “may have an impact” on his immigration status and that he understood that his guilty plea “could mean [he] could be deported.” The trial court sentenced appellee to five years of “confinement”[4] to be served entirely on probation and ordered him to pay a fine of $9,800. The fine was reduced from $10,000 to $9,800 at the request of plea counsel.On October 6, 2015, appellee was arrested by federal immigration agents. On December 30, 2015, appellee petitioned for habeas relief concerning his 2012 plea and conviction. On February 25, 2016, while the habeas petition was still pending, an immigration judge issued an order for appellee’s removal from the United States due to his counterfeit goods conviction.In his habeas petition, appellee alleged that plea counsel was constitutionally ineffective because he failed to advise appellee that pleading guilty to a violation of OCGA §10-1-454 would subject him to mandatory deportation for committing an “aggravated felony” under federal law.[5] At the habeas hearing, which was held on June 9, 2016, appellee presented a witness who was an immigration law expert. The immigration law expert testified that if a person is convicted of counterfeiting and is sentenced to a year or more of confinement, then the crime is an aggravated felony requiring mandatory deportation, regardless of how much time is served in prison or on probation.[6]The habeas court determined plea counsel was deficient by failing to inform appellee that he would be deported if he pleaded guilty to violating OCGA §10-1-454 (c).[7] The habeas court found plea counsel’s informing appellee that he “may” be deported was not reasonable upon a direct reading of the federal statute at issue. For the reasons set forth below, we reverse.The state of the law on April 10, 2012, the date on which appellee entered his guilty plea, was such that anyone convicted of an offense of counterfeiting for which “the term of imprisonment is at least one year” was guilty of an “aggravated felony” under the Immigration and Nationality Act (“INA”) and removable from the United States. See 8 USC §§ 1101 (a) (43) (R) (2011),[8]1227 (a) (2) (A) (iii).[9] See also Kesselbrenner and Rosenberg, Immigration Law and Crimes § 7:22 (December 2017) (“Aggravated felonies . . . disqualify the noncitizen from most waivers and forms of relief from removal, and result in greatly reduced procedural rights in detention and removal proceedings.”). “Under contemporary law, if a noncitizen has committed a removable offense . . . his removal is practically inevitable . . . .” Padilla v. Kentucky, 559 U.S. 356 (I) (130 SCt 1473, 176 LE2d 284) (2010). See also 8 USC § 1228 (b) (5) and (c).At the time appellee entered his plea, 8 USC § 1101 (a) (48) (B) (2011) provided as follows:Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.(Emphasis supplied.).Because “suspension” is not defined, the statute does not on its face make clear if and how it applies in the context of those cases where, as here, a court sentences a noncitizen to a period of confinement for five years but then probates rather than “suspends” the entire prison term.This lack of clarity can be seen in the cases grappling with the consequences of sentences of probation. For example, in United States v. Guzman-Bera, 216 F3d 1019 (11th Cir. 2000), the United States Court of Appeals for the Eleventh Circuit held that when a court imposes probation directly, rather than suspending a sentence of imprisonment, the conviction is not an aggravated felony. Id. at 1021. In reaching this decision, the Eleventh Circuit relied on case law from the United States Court of Appeals for the Fifth Circuit. Id.[10] A year later, the Eleventh Circuit, recognizing that the meaning of “suspension” was not clear, held that the federal definition of “suspension” applied and that the term of imprisonment includes “all parts of a sentence of imprisonment from which the sentencing court excuses the defendant, even ifthe court itself follows state-law usage and describes the excuse with a word other than ‘suspend.’” United States v. Ayala-Gomez, 255 F3d 1314, 1319 (11th Cir. 2001). The Eleventh Circuit stated that the federal law meaning of “suspension” was as follows: “a procedural act that precedes a court’s authorization for a defendant to spend part or all of the imposed prison sentence outside of prison.” Id.[11]In order to prevail on a claim of ineffective assistance of counsel, a defendantmust show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30 (4) (644 SE2d 837 (2007). In Padilla v. Kentucky, in holding that the Sixth Amendment right to effective assistance of counsel applies to advice given to noncitizen defendants about the deportation consequences of entering a guilty plea, the United States Supreme Court stated that[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.559 U.S. at 369.As shown above, the determination of whether 8 USC § 1101 (a) (43) (R) and 8 USC § 1101 (a) (48) (B) applied to appellee’s sentence was not “succinct and straightforward” at the time appellee entered his guilty plea in 2012. Although the answer, once appellee was put into removal proceedings in an immigration court in the Eleventh Circuit, might be clear to an immigration judge or an immigration law expert studied in the decisional law as well as the INA, Padilla v. Kentucky does not require criminal defense attorneys to have the knowledge of immigration judges or experts. Appellee’s criminal defense attorney was required to advise him that he “would” be deported only if that result was “truly clear.” See 559 U.S. at 369.Thus, plea counsel did not act outside the wide range of reasonable conduct afforded attorneys who represent criminal defendants, including those defendants who are noncitizens, when he advised appellee that he “could be” deported, rather than informing appellee that he “would be” deported if he entered the plea in question. See, e.g., Ellis v. United States, 806 FSupp.2d 538, 555-556 (E.D.N.Y. 2011). Accordingly, the judgment of the habeas court finding that plea counsel was ineffective is reversed.[12]Judgment reversed. All the Justices concur.
