Deported DACA immigrant loses appeal that divides panel

An immigrant who was deported after a misdemeanor guilty plea cost him his protection under the federal Deferred Action on Childhood Arrivals policy failed to show he was entitled to relief because his lawyer failed to inform him of his risk of deportation, the majority of an Indiana appellate panel found.

But dissenting Indiana Court of Appeals Chief Judge Nancy Vaidik found the majority’s conclusion Thursday was at odds with the evidence as well as “everyday experience.” She noted the underlying crime that led to the “Dreamer’s” deportation was “essentially shoplifting from Wal-Mart.”

Angelo Bobadilla was born in Mexico in 1996, was brought to the U.S. as a child, and has lived here for the last 10 years under the DACA program. He pleaded guilty to misdemeanor theft and possession of marijuana counts in March 2016 and was sentenced to one year suspended to probation. He was detained by Immigration and Customs Enforcement in May 2017 and subsequently deported, according to the record. The opinion notes that even though Bobadilla served no jail time, federal immigration law considers the misdemeanor an “aggravated felony” and a “crime of violence” because he was sentenced to one year or more.

Bobadilla had sought post-conviction relief from his conviction for ineffective and inadequate assistance of counsel. He unsuccessfully argued last year in Hamilton Superior Court that his counsel had not advised him that he could be deported because of his plea. It included an advisement that read, “If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. You should discuss this possibility with your attorney because if you do plead guilty, it will result in a criminal conviction.”

Bobadilla argued his attorney, Hamilton County public defender Karl Hadley, incorrectly marked “NA” next to the advisement. Hadley later acknowledged before the post-conviction court that he had not been aware of Bobadilla’s immigration status when he marked that this advisement did not apply to his client. The PCR court noted that Bobadilla admitted he never told his counsel his immigration status.

The majority of the Court of Appeals panel Thursday affirmed the trial court’s denial of Bobadilla’s PCR petition. Writing for the majority joined by Judge Terry Crone, Judge Paul Mathias wrote that Bobadilla had not shown ineffective assistance of counsel while observing in a footnote, “the State concedes that counsel’s performance here may have been deficient.”

Nevertheless, Mathias wrote, “Bobadilla has failed to show that … he was prejudiced by trial counsel’s failure to advise him of the risk of deportation. We initially note that Bobadilla never asserted that he would have proceeded to trial had he known the potential consequences of his plea. When asked if he would have reacted differently had the statement pertaining to immigration consequences not been marked NA by trial counsel on the advisement form, Bobadilla merely stated, ‘Yes, I would. I would take a different approach to that.’ … However, the approach Bobadilla would have taken is unclear, and his general statement is insufficient to establish prejudice based on improper advice from trial counsel.

“Moreover, the State’s case against Bobadilla was strong, and he received a substantial benefit by choosing to plea. At his plea hearing, Bobadilla agreed with the State’s factual basis for his theft and possession of marijuana convictions. And the State dropped two additional misdemeanor counts because Bobadilla accepted a plea agreement. Thus, Bobadilla admitted to the facts forming the basis of the crimes for which he was convicted, he received the benefit of avoiding two more convictions on his record, and he received an entirely suspended sentence from the court,” the panel found.

But Vaidik wrote that Bobadilla had proven “his trial counsel’s performance fell below an objective standard of reasonableness.

“Second, I am fully convinced that Bobadilla has demonstrated a reasonable probability that he would have rejected the plea had he known that he would be deported. … When Bobadilla pled guilty, he was 19 years old, was legally in the United States as a ‘Dreamer’ … and had lived here for at least 10 years. … After Bobadilla pled guilty and was sentenced to probation, he spoke to an immigration attorney, who informed him that his DACA status was at risk and that he was subject to deportation.

“… Bobadilla claimed that had he been properly advised of the risk of deportation, he would have … rejected it,” Vaidik wrote.

She also rejected the majority’s view of the supposed benefits Bobadilla derived from accepting the plea. She wrote the majority’s suggestion that Bobadilla would have accepted the plea even if he’d known of the risk of deportation was “at odds not only with Bobadilla’s post-conviction petition and testimony but also with everyday experience.

“Most people in his situation would see removal to a country they have not lived in since they were children to be a serious enough punishment to justify the rejection of an arguably ‘favorable’ misdemeanor plea and taking their chances at trial.” She wrote that the “reasonable probability” that Bobadilla would have rejected the plea required reversing the trial court.

The case is Angelo Bobadilla v. State of Indiana, 29A02-1706-PC-1203.