CASES OF INTEREST click here to go back to the Cases of Interest       CASES OF INTEREST: INEFFECTIVE ASSISTANCE OF COUNSEL   Issue: Plea bargain/deportation   Issue: Equitable tolling of in absentia removal order under 8 USC 1229a(b)(5)(C)(i) / counsel misrepresentations     Issue: Post-conviction relief application where permanent resident defendant entered guilty plea on counsel's advice and is subject to indefinite incarceration. STATE OF NEW JERSEY v. GEORGE J. GARCIA 320 N.J. Super. 332 (App. Div. 1999) Q. Is a defendant entitled to a post-conviction relief hearing concerning the competence of counsel when he alleges that counsel's misinformation about deportation led him to enter a plea bargain which resulted in indefinite incarceration? A. Yes. Defendant, a Cuban national and a permanent resident was indefinitely incarcerated because Cuba does not accept deported aliens from America. Garcia appealed from the denial of his Post Conviction Relief (PCR) application to set aside his guilty plea, which had been the cause of his deportation. Garcia claimed that he advised his lawyer he was a permanent resident and not a citizen. The trial judge, disbelieved him based on the attorney's certification and ruled defendant must have lied about being a citizen. The plea form supported Garcia's position. There is at least a question raised concerning whether Garcia would have pled guilty had he understood this possible consequence. Trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post conviction relief. Misstatements regarding the availability and or effectiveness of judicial recommendations against deportation have been held to constitute ineffective assistance of counsel. Guilty pleas can be vacated because of misinformation received during the plea process. The matter was remanded for a testimonial hearing to determine whether Garcia was provided misinformation about deportation and whether he had ineffective assistance of counsel.   back to the top     Issue: Equitable tolling of in absentia removal order under 8 USC 1229a(b)(5)(C)(i) / counsel misrepresentations KHALID SHARIF,v. ATTORNEY GENERAL OF THE UNITED STATES UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 06-2800 Q.1 Do counsel's misrepresentations provide exceptional circumstances for equitable tolling of the 180-day deadline for filing a motion to reopen from an in absentia removal order? Q.2 Is the denial of the motion to reopen from an in absentia removal order deprivation of the petitioner's fifth amendment right of due process? A. In view of the petitioner's lack of due diligence, the court declined to grant the extraordinary remedy of equitable tolling although the BIA noted that Petitioner would appear to have a successful ineffective assistance of counsel claim based on attorney Gary Jodha's misrepresentations. Petitioner alleged that in 1995 attorney Gary Jodha, informed petitioner Jodha would appear before the Immigration Judge and ask for a continuance because Petitioner was unable to appear on the asylum hearing date. Gary Jodha failed to appear and Petitioner was ordered removed in absentia. However, petitioner failed to inquire as to his status until 1998, when through other counsel he learned of the final order of deportation. The second attorney failed to file a motion to reopen and Petitioner made no inquiries as to his status until he was apprehended by ICE in 2005. 2. Petitioner was not denied his Fifth Amendment right of due process because he had received notice of the 1995 hearing.   back to the top