The California Court of Appeals, Second Appellate District, has affirmed the denial of a motion to vacate where the defendant was orally warned (through an interpreter) that he would be deported, he signed a written waiver with the same warning (translated by an interpreter), he went over that waiver with his attorney, his attorney verbally stated that she had explained the immigration consequences of the plea to him, and he orally acknowledged that he would “wait for immigration.” In addition, the victim of the offense testified at the preliminary hearing that she had reported the defendant to ICE and that ICE had said they would apprehend him if she could tell them his whereabouts, and an ICE agent was present at the defendant’s preliminary hearing.
“During the taking of the plea, appellant was told orally and in writing that he will be deported. Not that he ‘might’ be deported, or that he ‘could’ be deported. Appellant’s argument that he was not aware of the mandatory nature of the deportation flies in the face of the mandatory language used to describe the likelihood of deportation. Appellant is not entitled to simply ignore the admonitions he was given about the consequences of the plea, and argue that he unilaterally assumed he would be treated in direct contravention of what he was advised orally and in writing.”
“A defendant seeking to set aside a plea must do more than simply claim he did not understand the immigration consequences of the plea. The claim must be corroborated by evidence beyond the defendant’s self-serving statements.” The court noted the presence in other cases of testimony by the defense attorney or the defense attorney’s notes. “Here, appellant offered no contemporaneous evidence such as an affidavit and/or testimony by trial counsel, or counsel’s files, notes, or email correspondence. This is a case unlike Vivar, where the written advisal informed defendant he ‘may’ be subject to deportation, and counsel stated ‘possible’ deportation was discussed with defendant. Appellant has presented no independent evidence that he was told anything other than that he would be deported.”
“Appellant has also failed to present evidence that at the time of the plea, he ‘had reason to believe an immigration neutral negotiated disposition was possible.’ He did not offer an expert declaration opining hat alternative, nondeportable dispositions would have been available and acceptable to the prosecutor. His counsel now engages in speculation that he could have pled to burglary, without any citation from the record indicating that disposition would have been entertained by the prosecutor. And the issue is whether appellant had reason to believe a nondeportable disposition was available. He did not present a declaration from trial counsel that he was given such advice (which would have been contrary to the direct plea advisals that deportation would occur).”
“Appellant has not explained why anyone would reasonably have expected that ICE would forgo deportation proceedings against someone who admitted in writing they were temporarily getting married solely to obtain citizenship. Appellant has not shown that even if he had made an error in entering into the plea, it was ‘prejudicial’ within the meaning of the statute. At its core, this case comes down to answering the question: Can a defendant be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported? Our answer under the facts of this case is ‘no.’”
The full text of People v. Abdelsalam can be found here: