Post Conviction Relief and Immigration: New Jersey Courts Continue to Enforce Padilla

This week, the New Jersey appellate courts released two decisions further solidifying the United State Supreme Court’s holding in Padilla v Kentucky. In State v Duroseau and State v Delgado, the NJ appellate courts held that a foreign born, non-citizen defendant must be informed by defense counsel and the trial court of the immigration consequences of pleading guilty to a criminal offense.

In Duroseau, the appellate court interestingly  confirmed an argument that I have been making since Padilla was decided… that the court accepting the guilty plea is also responsible for accurately describing the immigration consequences of the subject plea. The decision focused on the trial court’s partially accurate description of what would happen if the defendant pleaded guilty to an almost certain deportable offense. In addition, the appellate court focused on the NJ standard plea form which generally addresses deportation, but does not accurately apply to most deportable criminal offenses.

In Delgado, the Court examined the application of the procedural time bar and the fact sensitive determination regarding a prima facie showing of ineffective assistance of counsel. This decision further illustrated under what circumstance a petitioner will be entitled to an evidentiary hearing to determine if counsel’s assistance was ineffective and whether the defendant was prejudiced as a result.

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