Jorge G. Aristotelidis
Attorney at Law
310 South St. Marys St.
Suite 1830
San Antonio, Texas 78205
210-277-1906
jgaristo67@gmail.com
The United States Supreme Court has
extended the right to counsel, under the
Sixth Amendment, first established in
Gideon v. Wainwright, 372 U.S. 335
(1963), to minors in state juvenile
delinquency proceedings.
In re Gault, 387 U.S. 1 (1967); Lanes v.
State, 767 S.W.2d 789 (Tex. Crim. App.
1989).
The right to representation includes the
right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668,
686 (1984). See In re K.J.O., 27 S.W.3d
340, 342 (Tex. App. – Dallas 2000)(citing
several Texas appellate courts recognizing
this right in juvenile proceedings).
Juveniles are entitled to effective
assistance of counsel, and such a claim
should be reviewed under the Strickland
standard. The right to representation
includes the right to effective assistance
of counsel.
In re R.D.B., 102 S.W.3d 798, 800 (Tex.
App. – Fort Worth 2003),
Padilla v. Kentucky, 559 U.S.
356 (2010).
Information from USSC website:
www.supremecourt.gov/Search.aspx?File
Name=/docketfiles/08-651.htm
[Recent] changes to our immigration law have
dramatically raised the stakes of a noncitizen’s criminal
conviction. The importance of accurate legal advice for
noncitizens accused of crimes has never been more
important. These changes confirm our view that, as a
matter of federal law, deportation is an integral part—
indeed, sometimes the most important part[]—of the
penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes.
Padilla v. Kentucky, 559 U.S. 356 at *6 (2010).
We…have never applied a distinction between
direct and collateral consequences to define the
scope of constitutionally “reasonable
professional assistance” required under
Strickland, v. Washington, 466 U. S. 668, at
689 (1984). Whether that distinction is
appropriate is a question we need not consider
in this case because of the unique nature of
deportation.
Padilla v. Kentucky, 559 U.S. 356 at *8
(2010).
The collateral versus direct distinction is
thus ill-suited to evaluating a Strickland
claim concerning the specific risk of
deportation.
Padilla v. Kentucky, 559 U.S. 356 at
*8-9 (2010).
Immigration law can be complex, and it is a legal
specialty of its own. Some members of the bar who
represent clients facing criminal charges, in either state
or federal court or both, may not be well versed in it.
There will, therefore, undoubtedly be numerous
situations in which the deportation consequences of a
particular plea are unclear or uncertain. [In cases where
the law is not succinct and straightforward, the duty of
the private practitioner…is more limited]. [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.[]
Padilla v. Kentucky, 559 U.S. 356 at *11-12
(2010).
But when the deportation consequence is
truly clear, as it was in [Padilla’s case], the duty
to give correct advice is equally clear.
Padilla v. Kentucky, 559 U.S. 356 at *12
(2010).
Padilla’s holding is not retroactive to
convictions that became final before its
publication (March 31, 2010). A failure to
advise in these cases is therefore not grounds
for post-conviction relief.
Chaidez v. United States, 133 S. Ct. 1103
at 1112 (2013).
However, Counsel may be ineffective for
rendering affirmative misadvise to the client, in
accordance with state precedent, regardless
of when the affirmative misadvice was given.
Chaidez v. United States, 133 S. Ct. 1103
(2013).
Affirmative misadvice by counsel
regarding a material issue that the
plea hearing reflects was key to the
defendant’s plea decision may
constitute deficient performance.
Ex parte Arjona, 402 S.W.3d 312
(Tex. App. – Beaumont 2013).
Juvenile adjudications are not
convictions for immigration purposes.
Matter of Devison, 22 I&N Dec. 1362
(BIA 2000)(en banc)(holding that this rule
was not changed by the 1996 enactment of a
statutory definition of a conviction at INA §
101(a)(48)(A)), citing to Matter of C.M., 5
I&N Dec. 27 (BIA 1953), Matter of RamirezRivero, 18 I&N Dec. 135 (BIA 1981).
Indeterminate and Determinate
sentencings are juvenile adjudications, and
thus, are not convictions for
immigration purposes.
But, juvenile adjudications can trigger
“conduct based” grounds of inadmissibility
and deportation for noncitizen clients,
which can eliminate the means to obtain or
keep lawful immigration status and result
in deportation.
Juvenile defendants might be found
inadmissible or deportable if immigration
authorities have evidence that the person
engaged in prostitution, made a false claim to
citizenship, used false immigration or
citizenship documents, smuggled aliens, is (or
was) a drug addict or abuser, admits certain
drug or moral turpitude offenses, and,
especially, if the government has “reason to
believe” the person ever has been or abetted a
drug trafficker.

The term “conviction” means, with respect to an
alien, a formal judgment of guilt of the alien entered by
a court or, if adjudication of guilt has been withheld,
where--

a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt,
and

the judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be imposed.

See 8 USCS § 1101(a)(48)(A).
A juvenile alien prosecuted by the State
as an adult suffers immigration
consequences, as would an adult.
Vieira Garcia v. INS, 239 F.3d 409, 413 (1st
Cir.2001) (“Once adjudicated by the state
court, as either a juvenile or an adult, we are
bound by that determination.”); VargasHernandez v. Gonzales, 497 F.3d 919, 923
(9th Cir.2007) (finding state treatment of
petitioner as adult determinative).
Duty
to Warn vs.
Affirmative
Misrepresentation?
NO LONGER RELEVANT
DISTINCTION
“I
am not an immigration
attorney, so you need to consult
with one regarding your status in
connection with your plea.”
No longer sufficient on its own
to discharge Padilla duty, but…
IT’S A GOOD STARTING POINT.
Get opinion IN WRITING.
Speak
to an EXPERIENCED or BOARD
CERTIFIED immigration lawyer who
handles REMOVAL LITIGATION, about
meeting with client; AND
Request a memorandum of law as it
applies to client’s case; AND
Learn the provisions and their effect on
your client’s case from the immigration
lawyer, well-enough to explain them
during plea hearing.
May
force a lawyer to proceed to
trial in the particular case, which;
May influence the prosecutor to
make alternative plea offer(s), once
it is clear that the client has no
choice but to proceed to trial to
have any chance of obtaining or
salvaging their immigration status.
By bringing deportation consequences into th[e plea
bargaining] process, the defense and prosecution may well
be able to reach agreements that better satisfy the interests
of both parties… Counsel who possess the most
rudimentary
understanding
of
the
deportation
consequences of a particular criminal offense may be able
to plea bargain creatively with the prosecutor in order to
craft a conviction and sentence that reduce the likelihood of
deportation, as by avoiding a conviction for an offense that
automatically triggers the removal consequence. At the
same time, the threat of deportation may provide the
defendant with a powerful incentive to plead guilty to an
offense that does not mandate that penalty in exchange for
a dismissal of a charge that does.
Padilla, at *16
The
end of same day (morning)
pleas in criminal cases for noncitizens?;
Opens the door to requests for
appointment of an immigration
expert for indigent criminal
defendants.
 The
Supreme Court recognizes that due process
requires access to the raw materials integral to the
building of an effective defense.
 While the State need not “purchase for an indigent
defendant all the assistance that his wealthier
counterparts might buy,” it must provide him the
basic tools to present his defense within our
adversarial system.
Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App.
1995)(citing Ake v. Oklahoma, 470 U.S. 68 at 77
(1985).
1.
2.
3.
The first factor is the defendant’s interest in the accuracy
of the criminal proceeding against him (weights heavily in
the analysis).
The second factor is the State’s interest in having a fair
and accurate adjudication of criminal cases without
wasteful or unnecessary expenditures of state funds. Ake
applies to non-psychiatric experts such as pathologists,
investigators and DNA analysts (not substantial in the
analysis).
The third factor simply requires the court to evaluate the
probable value of the assistance of the expert sought and
the risk of error if such assistance is denied (most
important element in the analysis)
See Rey at 346 (citing Ake at 78).
Ake is not limited to psychiatric experts; but
the type of expert requested is relevant to
the determination of whether the trial was
fundamentally unfair without the expert's
assistance. The nature of an expert's field
and the importance and complexity of the
issue will bear directly upon whether the
appointment of an expert will be helpful.
Rey v. State, 897 S.W.2d 333, 337 (Tex.
Crim. App. 1995).
If any reasonable attorney appointed to represent an
indigent defendant would be expected to investigate and
request expert assistance to determine a deceased infant’s
cause of death, a privately retained attorney should be
held to no lower standard. As the Supreme Court has
explained, “The vital guarantee of the Sixth Amendment
would stand for little if the often uninformed decision to
retain a particular lawyer could reduce or forfeit the
defendant's entitlement to constitutional protection. . . We
see no basis for drawing a distinction between retained
and appointed counsel that would deny equal justice to
defendants who must choose their own lawyers.”
Ex Parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App.
2005).





The obligation of all Courts is to ensure that plea is voluntary in
accordance with the Due Process Clause of the 5th Amendment to
the United States Constitution (as made applicable to Texas by the
14th Amendment to the U.S. Constitution). The current and
generally recognized admonishments require that a defendant
understand that by pleading guilty, he/she waives :
The right to a jury trial;
The right to confront (cross-examine) one’s accusers at trial;
The privilege against compelled self-incrimination (right to remain
silent); and to ensure
That the plea is not induced by “terror (i.e. coercion).”
See Gardner v. State, 164 S.W.3d 393, 398-399 (Tex. Crim. App.
2005)(citing Boykin v. Alabama, 89 S. Ct. 1709 (1969).
“ …juvenile delinquency proceedings which may lead to
commitment in a state institution must measure up to
the essentials of due process and fair treatment.
Specifically required [include]:
[N]otification to the child and his parents of the child's right
to be represented by counsel retained by them, or if they
are unable to afford counsel, that counsel will be
appointed to represent the child…”
Landry v. State, 504 S.W.2d 580, (Tex. App. – Beaumont
1973) (citing re Gault, generally).
In re Gault [] was the grandfather case that
activated a constitutional revolution
wherein the juvenile system became
subject to due process domestication.
Includes the right to “counsel…”
Lanes, at 793-894.
Art.
26.13(a)(4) Tex. Code Crim. Pro.
warning by Court during plea:
“…if the defendant is not a citizen of the
United States of America, a plea of guilty
or nolo contendere for the offense
charged may result in deportation, the
exclusion from admission to this country
or the denial of naturalization under
federal law.”
Section 54.03(b): trial court shall explain during
juvenile adjudication hearing:
(1) the allegations made against the child;
(2) the nature and possible consequences of the
proceedings, including the law relating to the
admissibility of the record of a juvenile court adjudication
in a criminal proceeding;
(3) the child's privilege against self-incrimination;
(4) the child's right to trial and to confrontation of
witnesses;
(5) the child's right to representation by an attorney if he
is not already represented; and
(6) the child's right to trial by jury.
Section
54.03(b);
Does not contain an immigration
warning;
In re E.J.G.P., 5 S.W.3d 868 (Tex.
App. – El Paso 1999) (failure to warn
of possible deportation, deemed a
collateral consequence, did not
render a juvenile plea involuntary).
NO LONGER GOOD LAW
Section
54.03(b);
Under Texas precedent,
failure to properly explain
these warnings constitutes
fundamental error
invalidating the plea.
None
required under Padilla’s Sixth
Amendment, effective assistance
holding. However:
Trial court has obligation to ensure
that plea is voluntary under the Due
Process Clause, in a juvenile
proceeding.
Now that immigration advice is
a requirement of effective
assistance, the Court is required
to ask about a lawyer’s advice on
the immigration consequence, in
order to ensure the voluntariness
of a plea.
1.
2.
3.
Lawyers have a tendency to gloss over
written warnings;
Lawyer more mindful of obligation if
matter is discussed on the record.
PUT THE LAWYER ON THE SPOT! If
the attorney doesn’t know, it will
come back eventually as a writ
proceeding, and the case will clog
your docket!
1.
2.
3.
ASK THE DEFENDANT – NOT THE
ATTORNEY, whether the attorney has
discussed the immigration
consequences of plea with them; and
ASK THE ATTORNEY, what the specific
consequences of the plea are on the
client’s immigration status.
If they don’t know, reset the case.
1.
2.
If concerned about divulging attorney
client communications that may be
relayed to immigration authorities:
Submit memorandum on subject of
client’s immigration consequences
with the court, EX PARTE, and UNDER
SEAL.
In Padilla, the Supreme Court has now
recognized a non-citizen juvenile defendant’s
right to be advised by their attorney of the
immigration consequences of a plea of
guilty.
A diligent effort by the attorney and a
watchful and proactive role by an attentive
judge will ensure that the client can make an
informed, and voluntary decision when
pleading, and that the matter does not
return to Court in a post-conviction
proceeding.