JUAN CARLOS SANMARTIN PRADO v. STATE OF MARYLAND
Court of Special Appeals, Wright, Oct. 2, 2015,
Ineffective Assistance – Deportation – Suggesting to client that a deportable criminal act “could” result in deportation was constitutionally ineffective because it suggested that deportation wasn’t inevitable

(Criticism below)

Statements that qualify “deportable,” such as “possibly deportable” or “may be deportable,” are inadequate advice as to immigration consequences because they suggest the discretion of the federal government in initiating immigration proceedings against a convicted noncitizen, which a trial attorney is in no position to determine.

Does the federal government not have discretion in initiating immigration proceedings?

Why can a trial attorney not be in a position to assess these risks?

Interestingly, the court here holds that if an attorney suggests that deportation isn’t definite, their advice will be held to be “below an objective standard of reasonableness.” Without any fact-finding by the court that deportation occurs in all cases, it seems unusual to hold that this is the advice that must be given by attorneys.

For this reason, I’ll limit the “legal holding” section to the part that’s actually likely to hold up over time:

Ineffective Assistance – Deportation – an attorney representing a noncitizen, in order to provide constitutionally effective representation, must inform the noncitizen client of the risk of deportation that follows a criminal conviction. Citing Padilla.

How that risk must be conveyed will be fought in future opinions, I would imagine, but according to the CoSA here it seems safest to stick with “deportable” and hold off on any qualification regarding the likelihood of deportation.