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Defense win! “Woefully” inadequate advice about deportation is ineffective assistance

State v. Irvin Perez-Basurto, 2016AP2136, 7/18/2017, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Irvin Perez-Basurto was born in Mexico and brought to the United States by his mother when he was 14. He had been approved by the Homeland Security for Deferred Action for Childhood Arrivals status (he is, in common parlance, a “dreamer”) and was thus permitted to remain in this country.

However, in this case he pled to four misdemeanors, two of which made him immediately removable, disqualified him from DACA, and barred him from other relief from removal. (¶4). Postconviction, he raised a Padilla ineffective assistance claim seeking plea withdrawal. At the Machner hearing, he testified that he explained his immigration status to his attorney multiple times, but the attorney was not familiar with DACA and apparently never made himself so. (¶5). The attorney testified as well, saying he did not research the immigration question and had no real recollection of discussing it with Perez-Basurto. (¶6). The trial court found counsel had been ineffective and granted plea withdrawal.

The state appealed. It argued that State v. Shata, 2015 WI 74, ¶10, 364 Wis. 2d 63, 868 N.W.2d 93, foreclosed a finding of ineffective assistance. In that case, our supreme court found counsel adequately advised his client by telling him there was a “strong chance” his plea would lead to deportation, when in fact deportation was mandatory. The court of appeals is unconvinced:

Here, defense counsel could not recall the extent of his conversations with Perez-Basurto regarding Perez-Basurto’s immigration concerns. Indeed, counsel was not even aware of what Perez-Basurto’s DACA status meant. Counsel also admitted to doing no research about Perez-Basurto’s status. From the record before us, it is clear that counsel did not provide advice even up to the level Shata received. We agree with the circuit court that defense attorneys should not be required to become immigration law experts; however, defense counsel’s “advice” in this case fell woefully short of that required by Padilla. Padilla requires that an attorney provide correct advice about the potential deportation consequences of a conviction when the potential consequences are clear. Id., 559 U.S. at 369. Here, counsel never did testify that he even understood his client’s DACA status, much less the consequences of the proposed pleas to that status. Where counsel was not even aware of Perez-Basurto’s immigration status, we cannot conclude that counsel provided Perez-Basurto with adequate advice regarding his deportation risk. The record establishing Perez-Basurto’s immigration consequences upon the completion of his sentence shows prejudice.


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