green
Positive treatment
Quoted verbatim 1×
30.1 score
“since the attorney does not aver that he made an affirmative misrepresentation, the defendant fails to state a claim for ineffective assistance of counsel.”
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976
2001
2026
Top citers, strongest first. 47 distinct citers.
How cited ↗
discussed
Cited as authority (quoted)
United States v. Ivania Maria Couto, Also Known as Sealed Dft 35
(2×)
also: Cited "see, e.g."
since the attorney does not aver that he made an affirmative misrepresentation, the defendant fails to state a claim for ineffective assistance of counsel.
discussed
Cited as authority (rule)
Farhane v. United States
The distinction between misadvice (in Padilla) and non-advice (here) is particularly important given that before Padilla we had consistently held “that an attorney’s failure to inform a defendant of the immigration consequences of a guilty plea [did] not constitute ineffective assistance of counsel . . . , but that an attorney’s affirmative misrepresentation about the [immigration] consequences of a guilty plea [could] constitute ineffective assistance.” Creary v. Mukasey, 271 F. App’x 127, 128 (2d Cir. 2008) (summary order) (first citing United States v. Santelises, 509 F.2d 703,…
discussed
Cited as authority (rule)
Farhane v. United States
(2×)
also: Cited "see"
Second, the Majority relies heavily on caselaw of this Court that either preceded Padilla, see, e.g., United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam), abrogated by Padilla, 559 U.S. 356 ; Parrino, 212 F.2d at 921 , 6 or caselaw from other courts that, while more recent, does not address denaturalization and provides, at best, limited support to the Majority’s position, see, e.g., United States v. Reeves, 695 F.3d 637, 640 (7th Cir. 2012) (considering whether failure to advise on enhanced sentencing for future criminal conduct can give rise to an ineffective assista…
cited
Cited as authority (rule)
Farhane v. United States
See, e.g., Couto, 311 F.3d at 187 ; United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam).
discussed
Cited as authority (rule)
Chaidez v. United States
(2×)
See 559 U. S., at ___ (slip op., at 7); supra, at 9. 14 See also Resendiz v. Kovensky, 416 F. 3d 952, 957 (CA9 2005) (“[B]ecause immigration consequences remain collateral, the failure of counsel to advise his client of the potential immigration consequences of a conviction does not violate the Sixth Amendment”); Russo v. United States, 1999 WL 164951 , *2 (“[C]ounsel cannot be found ineffective for the mere failure to inform a defendant of the collateral consequences of a plea, such as deportation”) (relying on United States v. Santelises, 509 F. 2d 703, 704 (CA2 1975) (per curiam)). …
discussed
Cited as authority (rule)
Miller v. State
These are, after all, the existing precedents that either compel the new rule in question or indicate that the new rule was not compelled. 1975, Second Circuit In United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975), the Second Circuit held that the mere failure of an attorney to advise a client about deportation does not even state a claim.
discussed
Cited as authority (rule)
Miller v. State
Nine of the twelve federal circuits had spoken on the subject before the Supreme Court’s decision in Padilla and their verdict was unanimous. 1975, Second Circuit In United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975), the Second Circuit held that the mere failure of an attorney to advise a client about deportation does not even state a claim.
discussed
Cited as authority (rule)
State v. DENISYUK
(2×)
U.S. v. Campbell, 778 F.2d 764, 768 (11th Cir.1985), U.S. v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985), U.S. v. Santelises, 509 F.2d 703, 704 (2nd Cir.1975).
discussed
Cited as authority (rule)
Alam v. United States
It is worth noting that in the Fourth Circuit, "an attorney's failure to advise a client that deportation may result from a conviction does not constitute ineffective assistance of counsel.” United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir.1988) (citing United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975)) (emphasis added).
discussed
Cited as authority (rule)
Creary v. Mukasey
We have held that an attorney’s failure to inform a defendant of the immigration consequences of a guilty plea does not constitute ineffective assistance of counsel, see United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam), but that an attorney’s affirmative misrepresentation about the deportation consequences of a guilty plea can constitute ineffective assistance, see Couto, 311 F.3d at 188 .
discussed
Cited as authority (rule)
Yong Wong Park v. United States
Judge Wallace believes Park’s ineffective assistance of counsel claim must be rejected under United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975), a case in which this court explicitly held that counsel’s mere failure to inform the defendant of the deportation consequences of a plea was insufficient to state a claim for ineffective assistance.
discussed
Cited as authority (rule)
D'AMBROSIO v. State
(2×)
See, e.g., United States v. Gonzalez, 202 F.3d 20, 25 (1st Cir. 2000) ("[c]ounsel's failure to advise a defendant of a collateral consequence is a legally insufficient ground for a plea withdrawal"); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (failure of counsel to inform defendant that defendant might be subject to deportation upon conviction has no legal significance to defendant's claim of ineffective assistance of counsel, since defendant does not aver that counsel made an affirmative misrepresentation); Meyers v. Gillis, 93 F.3d 1147, 1153 (3d Cir.1996) ("[i]t is well se…
discussed
Cited as authority (rule)
United States v. Kwan
In Couto, the Second Circuit noted that it had previously held “that an attorney’s failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness,” id. at 187 (citing United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975)), but recognized that the circumstances of Couto’s case were more egregious.
discussed
Cited as authority (rule)
State v. Aquino
Ed. 2d 956 (1990); United States v. George, supra, 869 F.2d 337 -38; United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United States v. Yearwood, supra, 863 F.2d 7 -8; United States v. Campbell, supra, 778 F.2d 768 -69; United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975); Government of Virgin Islands v. Pamphile, 604 F. Sup. 753, 756-57 (D.V.I. 1985); Oyekoya v. State, 558 So. 2d 990, 990-91 (Ala. Crim.
discussed
Cited as authority (rule)
United States v. Kwok Chee Kwan, AKA Jeff Kwan
In Couto , the Second Circuit noted that it had previously held “that an attorney’s failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness,” id. at 187 (citing United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975)), but recognized that the circumstances of Couto’s case were more egregious.
discussed
Cited as authority (rule)
United States v. Kwan
United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002). 5164 UNITED STATES v. KWAN In Couto, the Second Circuit noted that it had previously held “that an attorney’s failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness,” id. at 187 (citing United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975)), but recognized that the circumstances of Couto’s case were more egregious.
discussed
Cited as authority (rule)
Hatami v. Ridge
Hatami's prospects for success on the ineffective assistance of counsel issue are problematic given the Fourth Circuit’s pronouncement that “the Constitution does not require defense counsel to inform an accused person of the collateral consequences of his guilty plea, and therefore,... ineffective assistance does not occur where counsel fails to tell the defendant that his plea may or will result in deportation.” See United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989) (holding that defendant was not entitled to withdraw his guilty plea based on his counsel’s failure to inform h…
discussed
Cited as authority (rule)
United States v. John William Fry
All other circuits to address -the question have concluded that “deportation is a collateral consequence of the criminal process and hence the failure to advise does not amount to ineffective assistance of counsel.” United States v. Banda, 1 F.3d 354, 356 (5th Cir.1993); accord United States v. Gonzalez, 202 F.3d 20, 25 (1st Cir.2000); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir.1992), cert. denied, 507 U.S. 1039 , 113 S.Ct. 1869 , 123 L.Ed.2d 489 (1993); United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990), cert. denied, 498 U.S. 942 , 111 S.Ct. 352 , 112 L.Ed.2d 316 (1990); S…
discussed
Cited as authority (rule)
State v. Ramirez
See Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972) ...; State v. Casseus, 513 So.2d 1045 (Fla.1987); Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987); State v. Chung, 210 N.J.Super. 427 , 510 A.2d 72, 76-77 (App.Div.1986); State v. Dalman, 520 N.W.2d 860, 863-64 (N.D.1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App.1994); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975); United States v. Yeanoood, 863 F.2d 6, 7-8 (4th Cir.1988); United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir.1985); Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.1989) *745 ...; United States v. Campbell,…
cited
Cited as authority (rule)
State v. Colack
A resident alien's guilty plea is not "rendered involuntary because he was unaware that he might be deported. [Cits.]" United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975).
discussed
Cited as authority (rule)
Jaafar v. Immigration & Naturalization
Moreover, “an attorney’s failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel.” United States v. Banda, 1 F.3d 354, 355 (5th Cir.1993); accord United States v. Yearwood, 863 F.2d 6, 7 (4th Cir.1988); United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975).
discussed
Cited as authority (rule)
State v. Tuan Quoc Nguyen
Cf. United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990), cert. denied, 498 U.S. 942 , 111 S.Ct. 352 , 112 L.Ed.2d 316 (1990); United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir.1989); United States v. Yearwood, 863 F.2d 6, 8 (4th Cir.1988); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985); Downs-Morgan, v. United States, 765 F.2d 1534, 1538 (11th Cir.1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975). 5 .
discussed
Cited as authority (rule)
State v. Rosas
See Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945 , 93 S.Ct. 1389 , 35 L.Ed.2d 611 (1973); State v. Casseus, 513 So.2d 1045 (Fla.1987); Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987); State v. Chung, 210 N.J.Super. 427 , 510 A.2d 72, 76-77 (App.Div.1986); State v. Dalman, 520 N.W.2d 860, 863-64 (N.D.1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App.1994); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988); United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir.1985); Santos v. Kolb, 880 …
discussed
Cited as authority (rule)
State v. McFadden
See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.), cert. denied, 498 U.S. 942 , 111 S.Ct. 352 , 112 L.Ed.2d 316 (1990); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988); United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985); Downs-Morgan v. United States, 765 F.2d 1534, 1537-38 (11th Cir.1985); Russell, 686 F.2d at 39 ; Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976); *1305 United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975); Sambro, 454 F.2d at 921-22 ; United States v. Nagaro-Garbin, 653 F.Supp. 586, 589 (E.D.Mich.1987).
discussed
Cited as authority (rule)
Chukwurah v. United States
(2×)
also: Cited "see"
United States v. Santelises, 509 F.2d 703, 703-04 (2d Cir.1975).
discussed
Cited as authority (rule)
Mohammed Ibrahim Kandiel A/K/A Jeff Soun Howard v. United States
See United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir.1989); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.), cert. denied, 429 U.S. 895 , 97 S.Ct. 256 , 50 L.Ed.2d 178 (1976); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam).
discussed
Cited as authority (rule)
United States v. Robert T. Porter
United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.) (collecting cases), cert. denied, --- U.S. ----, 111 S.Ct. 352 (1990); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (failure to inform of possible deportation not ineffective assistance). 37 Even if this court found that counsel's failure to explain the intricacies of Parole Commission action to his client was egregious error, we would still be unable to find that any such error prejudiced the sentencing proceeding because "[t]he defendant must show that there is a reasonable probability that, but for counsel…
discussed
Cited as authority (rule)
United States v. Nino, Victor. Appeal of Victor M. Nino
Compare United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir.1985) (counsel’s failure to advise defendant of deportation consequences cannot rise to level of constitutionally ineffective assistance, although counsel’s affirmative misrepresentation in response to a specific inquiry from the defendant may do so); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (same); Tafoya v. State, 500 P.2d 247, 251-52 (Alaska), cert. denied, 410 U.S. 945 , 93 S.Ct. 1389 , 35 L.Ed.2d 611 (1972) (same); with Edwards v. State, 393 So.2d 597, 599-600 (Fla.App.1981) (counsel’s…
discussed
Cited as authority (rule)
United States v. Robert Melvin Defreitas
See United States v. Yearwood, 863 F.2d 6, 8 (4th Cir., 1988); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (failure to inform client of possible deportation does not constitute ineffective assistance of counsel).
discussed
Cited as authority (rule)
United States v. Kelvin Yearwood, American Immigration Lawyers Association, Amicus Curiae
(2×)
also: Cited "see"
United States v. *8 Campbell, 778 F.2d 764, 768 (11th Cir.1985); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975).
cited
Cited as authority (rule)
United States v. Nagaro-Garbin
United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975).
discussed
Cited as authority (rule)
LaPorta v. United States
(2×)
also: Cited "see, e.g."
See Downs-Morgan v. United States, 765 F.2d 1534, 1540 (11th Cir.1985) (“We decline to hold that an affirmative misrepresentation by an attorney in response to a specific inquiry by the accused which results in a plea of guilty necessarily constitutes ineffective assistance of counsel.”); cf. United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam) (petitioner fails to state a claim for ineffective assistance of counsel where petitioner failed to allege that attorney made an affirmative misrepresentation of immigration law); United States v. Briscoe, 432 F.2d 1351, 1353 (…
discussed
Cited as authority (rule)
United States v. Monica Joyce Campbell
Lake, 709 F.2d at 45 . “[A] defendant’s misunderstanding about the prospect of deportation, without more, has been repeatedly viewed as insufficient to render a guilty plea involuntary.” Gavilan, 761 F.2d at 228 (footnote omitted); Russell, 686 F.2d at 39 ; United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (citing Michel v. United States, 507 F.2d 461 (2d Cir.1974)).
discussed
Cited "see"
Kovacs v. United States
See United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (“Since [defense counsel] does not aver that he made an affirmative misrepresentation, [petitioner] fails to state a claim for ineffective assistance of counsel.”); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974) (‘While recognizing that deportation was a serious sanc *51 tion, this court ... [noted] that there was before it no allegation of misleading by counsel.”); see also United States v. Zilberov, 162 F.3d 1149 , 1998 WL 634211 , at *1 (2d Cir.1998) (unpublished summary order) (“[TJrial counse…
discussed
Cited "see"
State v. Yanez
See United States v. Santelises (C.A. 2, 1975), 509 F.2d 703 , 704 ; United States v. Gavilan (C.A. 5, 1985), 761 F.2d 226 , 228 ; United States v. Campbell (C.A. 11, 1985), 778 F.2d 764 , 768 ; see, generally, Chin Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas (2002), 87 Cornell L.Rev. 697.
cited
Cited "see"
Mandarino v. Ashcroft
See United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975).
discussed
Cited "see"
United States v. Couto
See United States v. Santelises, 509 F.2d 703 *173 (1975)(affirmative misrepresentation could be reason to allow the withdrawal of a plea); United States v. Santelises, 476 F.2d 787 (2d Cir.1973)(same); United States v. Zilberov, 162 F.3d 1149 , 1998 WL 634211 (2d Cir.1998)(Table)(“trial counsel’s alleged warning of ‘possible’ deportation may have been inaccurate and, arguably, objectively unreasonable.”); see also Kyem v. United States, 2000 WL 1458806 , *2 (S.D.N.Y.
discussed
Cited "see"
Berkow v. State
App.1995) (holding that failure to inform defendant is ineffective assistance of counsel); Frometa, 555 A.2d at 93 (holding that failure to inform defendant is not ineffective assistance of counsel); In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992, 992 (Fla.1988) (requiring court to inform defendant of immigration consequences, superseding State v. Ginebra, 511 So.2d 960, 960 (Fla.1987) (holding that counsel’s assistance not ineffective)); People v. Pozo, 746 P.2d 523, 529 (Colo.1987) (stating that counsel’s assistance is ineffective if counsel knew or had reason to …
cited
Cited "see"
United States v. Castro
See United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975); see also Banda, 1 F.3d at 356 (listing the Second Circuit as having adopted that view). 10 .
cited
Cited "see"
Polanco v. United States
See United States v. Santelises, 509 F.2d 703 (2d Cir.1975).
discussed
Cited "see"
State v. Arvanitis
See, i.e., United States v. Santelises (C.A. 2, 1975), 509 F. 2d 703, 704 ; United States v. Campbell (C.A. 11, 1985), 778 F. 2d 764, 768-769 (counsel’s affirmative misrepresentation may constitute ineffective assistance of counsel).
discussed
Cited "see"
United States v. Gil Ricardo Gavilan
See Comment, Collateral Consequences of Guilty Pleas in the Federal Criminal Justice System, 16 Harv.C.R.C.L.L.Rev. 157, 169-70 & n. 42 (1981). 5 . 212 F.2d 919 , 921-22 (2d Cir.1954). 6 . 509 F.2d 703, 704 (2d Cir.1975). 7 .
cited
Cited "see"
Douglas Fruchtman v. Frank Kenton, Warden
See United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975); Michel v. United States, 507 F.2d 461, 464-65 (2d Cir. 1974) (grounded on Rule 11).
discussed
Cited "see, e.g."
United States v. Mora-Gomez
See Downs-Morgan v. United States, 765 F.2d 1534, 1538-41 (11th Cir. 1985); United States v. Briscoe, 432 F.2d 1351, 1353-54 (D.C.Cir.1970); State v. Sallato, 519 So.2d 605 (Fla.1988); People v. Correa, 108 Ill.2d 541 , 92 Ill.Dec. 496 , 485 N.E.2d 307, 310-11 (1985); see also United States v. Santelises, 509 F.2d 703, 703-04 (2d Cir.1975) (denying coram nobis petition alleging ineffective assistance of counsel because it did not allege affirmative misstatement of plea’s consequences). 9 *1213 As the government notes, a few cases have reached the opposite conclusion, indicating that a guilty…
discussed
Cited "see, e.g."
Retamoza v. State
See, e.g., United States v. Santelises, 509 F.2d 703 (2d Cir.1975); United States v. Yearwood, 863 F.2d 6 (4th Cir.1988); United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985); Santos v. Kolb, 880 F.2d 941 (7th Cir.1989); United States v. Campbell, 778 F.2d 764 (11th Cir.1985); State v. Ginebra, 511 So.2d 960 (Fla.1987); Mott v. State, 407 N.W.2d 581 (Iowa 1987); State v. Santos, 401 N.W.2d 856 (Wis.Ct.App.1987).
discussed
Cited "see, e.g."
Steve Anthony Trench v. Immigration and Naturalization Service
Compare Commonwealth v. Wellington, 305 Pa.Super. 24 , 451 A.2d 223, 224-25 (1982) (ineffective assistance found), and Edwards v. State, 393 So.2d 597, 599 (Fla.Dist.Ct.App.) (ineffective assistance found under state constitution), petition denied, 402 So.2d 613 (1981), with United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (no ineffective assistance), and United States v. Santelises, 476 F.2d 787, 789-90 (2d Cir. 1973) (same), and Tafoya v. State, 500 P.2d 247, 251-52 (Alaska 1972) (same), cert. denied, 410 U.S. 945 , 93 S.Ct. 1389 , 35 L.Ed.2d 611 (1973).
discussed
Cited "see, e.g."
Derrick Downs-Morgan v. United States
(2×)
Compare Commonwealth v. Wellington, 305 Pa.Super. 24 , 451 A.2d 223, 224-25 (1982) (ineffective assistance found) and Edwards v. State, 393 So.2d 597, 599 (3d DCA Fla.) (ineffective assistance found under state constitution), review denied, 402 So.2d 613 (1981), with United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per curiam) (no ineffective assistance) and United States v. Santelises, 476 F.2d 787, 789-90 (2d Cir.1973) (same) and Tafoya v. State, 500 P.2d 247, 251-52 (Alaska 1972) (same), cert. denied, 410 U.S. 945 , 93 S.Ct. 1389 , 35 L.Ed.2d 611 (1973).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Amadeo Augusto Luciano SANTELISES, Defendant-Appellant
v.
Amadeo Augusto Luciano SANTELISES, Defendant-Appellant
517, Docket 74-2311.
Court of Appeals for the Second Circuit.
Jan 9, 1975.
Austin T. Fragomen, Jr., New York City (Fried, Fragomen & Del Rey, New York City, of counsel), for defendant-appellant., Thomas E. Engel, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern district of New York, Bart M. Schwartz, John D. Gordan, Asst. U. S. Attys., of counsel), for appellee.
Kaufman, Feinberg, Mansfield.
Cited by 74 opinions | Published
Citer courts: Second Circuit (1)
PER CURIAM:
Amadeo Santelises is no stranger to this court. In United States v. Santelises, 476 F.2d 787 (2d Cir. 1973), we rejected his claim that his guilty plea was not knowingly and voluntarily tendered because he was not informed that deportation was a collateral conse[*704] quence of his plea. [1] He now appears before us once again after a denial of his coram nobis petition by Judge Tenney. All that is new is an appended affidavit from Robert Mitchell- — -his counsel at the plea proceedings — which states that Mitchell did not inform Santelises that he might be subject to deportation. This affidavit, however, is of no legal significance. Since Mitchell does not aver that he made an affirmative misrepresentation, Santelises fails to state a claim for ineffective assistance of counsel. Id. at 789 — 790. Nor is Santelises’s plea rendered involuntary because he was unaware that he might be deported. See, id.; Michel v. United States, 507 F.2d 461 (2d Cir. 1974). Accordingly, we must affirm.
Having disposed of the merits of the appeal we cannot overlook another aspect of Santelises’s plight which concerns us. We are informed that Santelises has been in the United States nine years since he was indicted for the preparation and use of false immigration documents, which led to his plea. He served his concurrent one-year probation sentences without incident, and since then has lived, worked, and established strong ties in this country. We are told also that his wife and children are American citizens, and that in less than one year, Santelises would be able to seek relief under 8 U.S.C. § 1254(a)(2). [2] That section authorizes the Attorney General to suspend deportation upon a showing that the affected alien has been a person of good moral character, and that his deportation would result in exceptional hardship to him, his spouse, or his child. It would appear not to be improbable that Santelises may be able to make such a showing if the allegations of his counsel are true. In view of the time which has ' passed since he committed the deportable offense, we hardly think the Immigration and Naturalization Service would be remiss in its duty if it were to wait the few months necessary to afford Santelises an opportunity to apply pursuant to § 1254.
1
. And in Santelises v. Immigration and Naturalization Service, 491 F.2d 1254 (2d Cir.), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974) we rejected Santelises’s claims that deportation constitutes cruel and unusual punishment and denies aliens equal protection of the law.
2
. In fact, the indictment indicates that Santelises may already be eligible for consideration under 8 U.S.C. § 1254(a)(2), since it alleges that the acts constituting grounds for deportation were committed in 1962 and 1963, and the statute provides that the continuous ten-year residence period commences with the “commission” of the offense.