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Hernandez’s counsel provided ineffective immigration assistance

In Rodolfo Hernandez v. USA, This appeal required the court of appeals decide whether the district court abused its discretion when it refused to conduct an evidentiary hearing to determine whether Rodolfo Hernandez’s counsel provided effective assistance when she incorrectly advised him about the immigration consequences of his guilty plea. Hernandez pleaded guilty to one count of conspiring to possess with the intent to distribute at least 1,000 kilograms of substance containing marijuana, and three counts of possession with intent to distribute at least 100 kilograms of a substance containing marijuana. After defendant entered his plea but before his conviction became final, the Supreme Court decided Padilla v. Kentucky. Which held that “counsel must inform her client whether his plea carries a risk of deportation.” He later moved to vacate his sentence based on ineffective assistance of counsel. The district court denied his motion without an evidentiary hearing.

During Hernandez sentencing hearing, his counsel asked the district court to explain the possibility of an immigrant detainer. The district court refused to answer the question because the court had absolutely no control over what Immigration and Customs Enforcement does. The district court sentenced Defendant Hernandez to 120 months of incarceration and five years of supervised release. After the Department of Homeland and Security issued an immigration detainer during his incarceration, Hernandez filed a pro se motion to vacate his sentence were he alleges that his “defense counsel advised him that based on her past experiences, there is a substantial likelihood that he would not be deported from the United States to Cuba”. Also that his “defense counsel advised him that based on her experience, detainers generally not issued for Cuban defendants.” He alleged that, absent counsel’s grossly incorrect advice he would not have entered a plea of guilty but would have instead in proceeding to trial. He later alleged that he has “been in the United States with his family almost his entire life, and therefore, he would not have agreed to plead guilty which will automatically remove him from his family and from a Country he has called home all of his adult life.” The district court denied his motion without an evidentiary hearing because he entered his guilty plea, more than one year before the Supreme Court’s decision in Padilla, and counsel failure to anticipate a change in the law does not constitute ineffective assistance.

The court of appeals believes that the district court abused its discretion when it denied Hernandez’s motion without an evidentiary hearing. Also that the district court erred when it ruled that Padilla did not govern counsel’s performance. And Hernandez alleged facts that. If true, would entitle him to relief and the district court must conduct an evidentiary hearing. Hernandez had to allege facts that would prove both that his counsel performed deficiently and that he was prejudiced by his counsel’s deficient performance.

Here, the issue is not whether Hernandez’s counsel should have made an argument in the district court; the issue is whether Hernandez’s counsel performed deficiently when she advised him about the immigration consequences of his guilty plea. As the government concedes, Padilla governs the review of whether counsel performed deficiently when she advised Hernandez to plead guilty.

Hernandez alleged specific facts that would prove that he could have rationally chosen to risk longer incarceration for the chance to avoid deportation. Because he alleged facts that, if true, would prove that his counsel performed deficiently and that he was prejudiced by her deficient performance, the court of appeals remanded with instructions to conduct an evidentiary hearing to determine whether Hernandez is entitled to relief.