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ALTHOUGH THE CHILD’S IMMIGRANT VISA HAD BEEN LOST, THE PROOF DEMONSTRATED THAT THE CHILD MUST HAVE BEEN ISSUED THE APPROPRIATE VISA AND THAT, THEREFORE, PETITIONER WAS ENTITLED TO REGISTRATION OF A FOREIGN ADOPTION AND AN ORDER OF ADOPTION FOR THE CHILD (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined petitioner was entitled to registration of foreign adoption and an order of adoption for the child who was born in China based upon proof the child must have been admitted to the US with an IR-3 or IH-3 immigrant visa, which had been lost:

… [T]the petitioner, a New York resident, was unable to annex a copy of the child’s immigrant visa to the petition because it had been lost. However, the petitioner provided an affidavit averring that the child had been issued the relevant immigrant visa and a copy of the replacement Certificate of Citizenship, issued by USCIS, showing that the child became a United States citizen only nine days after her adoption. The record shows that the child would not have been able to automatically obtain a Certificate of Citizenship if she had not possessed the appropriate immigrant visa. Under these circumstances, we conclude that the foreign adoption order meets the requirements of Domestic Relations Law § 111-c(1), including the requirement that “the validity of the foreign adoption has been verified by the granting of an IR-3, IH-3, or a successor immigrant visa” (see id. § 111-c[1][b]). Indeed, to determine otherwise would defeat the intention of Domestic Relations Law § 111-c to protect adoptive families from unnecessary effort and expense. Matter of Lily, 2025 NY Slip Op 00448, Second Dept 1-29-25

Practice Point: Here, although the child’s immigrant visa has been lost, the proof demonstrated the child must have been issued the appropriate visa. Therefore the court should have issued a registration of foreign adoption and an order of adoption for the child (born in China).

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR COUNSEL OF HIS CHOICE, ASSIGNED COUNSEL’S DISPARAGING REMARKS, AND ASSIGNED COUNSEL’S FAILURE TO INFORM DEFENDANT DEPORTATION WAS MANDATORY, AMOUNTED TO A DEPRIVATION OF DEFENDANT’S RIGHT TO COUNSEL; GUILTY PLEA WITHDRAWN AND VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to withdraw and vacate his guilty plea should have been granted. Defendant did not receive effective assistance of counsel:

The People concede that defendant’s right to counsel was violated by the court’s ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter … , and by the conflict of interest between assigned counsel and defendant that arose from counsel’s disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing.

Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant’s conviction would trigger mandatory deportation … . People v Pan, 2024 NY Slip Op 06166, First Dept 12-10-24

Practice Point: The judge improperly prohibited defendant from obtaining counsel of his choice.

Practice Point: Assigned counsel’s disparaging remarks about defendant created a conflict of interest.

Practice Point: Assigned counsel’s failure to inform defendant deportation was mandatory constituted ineffective assistance.

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN SO INFORMED; REVERSED AND REMITTED FOR A HEARING ON THE MOTION TO VACATE THE GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (THIRD DEPT).

The Third Department, reversing County Court and ordering a hearing on defendant’s motion to vacate his guilty plea on ineffective assistance grounds, determined defendant, a citizen of Haiti, sufficiently demonstrated he had never been informed of the deportation consequences of the guilty plea and he would not have pled guilty if he had been so informed:

… [D]efendant proffered a sworn affidavit wherein he averred that counsel did not inquire as to whether defendant was a citizen, never discussed with defendant his immigration status nor did he advise defendant that he could be deported as a result of his guilty plea. Defendant also asserted that, during the plea proceeding, County Court never inquired about whether he was a United States citizen, his immigration status or advised that a conviction could result in deportation. This assertion is supported by the record, which reveals no mention of citizenship or deportation at any point during defendant’s plea or sentencing … . Defendant also averred that he moved to the United States approximately 20 years ago, when he was six years old, and that his entire family resides in this country … . Furthermore, defendant asserted that he would not have pleaded guilty and would have insisted on going to trial if he had been informed that this conviction could result in deportation … . Thus, defendant sufficiently alleged that counsel failed to provide him with any information regarding deportation consequences of his plea and that defendant was prejudiced because he would not have pleaded guilty had he been advised of these consequences, such that a hearing is warranted … . Indeed, given defendant’s affidavit as well as the record of the plea proceeding, there is a genuine concern that, as defendant asserts, he was never advised of the deportation consequences of his plea. Accordingly, this matter must be remitted to County Court for a hearing on defendant’s CPL 440.10 motion. People v Philippe, 2024 NY Slip Op 03105, Third Dept 6-6-24

Practice Point: The failure to inform a non-citizen defendant of the deportation consequences of a guilty plea can constitute ineffective assistance.

Practice Point: A non-citizen defendant who shows he was not informed of the deportation consequences of the guilty plea and sufficiently demonstrates he would not have pled guilty if he had been so informed is entitled to a hearing on his motion to vacate the guilty plea.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT DEMONSTRATED DEFENSE COUNSEL PROVIDED ERRONEOUS INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF THE PLEA; AND DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE DECIDED AGAINST PLEADING GUILTY HAD HE BEEN GIVEN ACCURATE INFORMATION ABOUT THE RISK OF DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea on the ground his attorney provided erroneous information about the deportation consequences of the plea. In addition to showing defense counsel’s advice was wrong, defendant raised a question of fact whether it was reasonably probable he would not have pled guilty if he had been correctly advised about the risk of deportation:

… [T]rial counsel erroneously advised defendant that he “could . . . be deported” if he were to be “incarcerated for any extensive amount of time,” but, if he were sentenced to “probation,” defendant would not be deported. “These advisements were erroneous, and … defense counsel readily could have ascertained — simply from a reading of the relevant statutes — that defendant’s plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory and rendered defendant ineligible for cancellation of an order of removal” … . …

… [D]efendant averred in his CPL 440.10 motion that, at the time of his plea, he had resided in the United States for over 20 years and that he “financially supported the mother of his child, as well as her two older children from a prior relationship.” Given his family circumstances and their dependency upon him, defendant averred that, had he received correct advice about pleading guilty to an aggravated felony for purposes of immigration, he “would have rejected the plea offer, proceeded to trial, or sought other alternative plea options.” These allegations “raise a question of fact as to whether it was reasonably probable that he would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea” … . People v Pinales-Harris, 2024 NY Slip Op 02844, Third Dept 5-23-24

Practice Point: If, in the papers supporting a motion to vacate the guilty plea, a defendant shows defense counsel provided erroneous information about the deportation consequences of the guilty plea, and raises a question of fact whether it is reasonably probable he would not have pled guilty had the correct information been provided, he is entitled to a hearing on the motion.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT WAS TOLD BY DEFENSE COUNSEL THAT DEPORTATION BASED ON THE PLEA WAS POSSIBLE, BUT HE WAS NOT TOLD IT WAS MANDATORY; DEFENDANT DEMONSTRATED HE MAY HAVE DECIDED TO GO TO TRIAL IF HE HAD BEEN AWARE OF THE MANDATORY DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea. Although the court and defense counsel warned defendant he may be subject to deportation based upon his guilty plea, defendant was not told by counsel that deportation would be mandatory. Defendant was entitled to a hearing on whether he was afforded effective assistance of counsel:

During the plea colloquy, County Court — after prompting by the People — advised defendant that his plea to a felony “may result in [his] deportation” and, at the time of sentencing, defense counsel acknowledged that defendant “took a plea with the understanding that there might be some [i]mmigration issues.” Similarly, defendant averred in support of his CPL 440.10 motion that defense counsel “said that there was only a possibility that [he] could be deported,” and that neither County Court nor defense counsel ever told him “that [he] would be deported if [he] plead[ed] guilty.” These advisements were erroneous, and, as … defense counsel readily could have ascertained — simply from a reading of the relevant statutes — …defendant’s plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory … and rendered defendant ineligible for cancellation of an order of removal … . “Where, as here, defense counsel gives incorrect advice regarding the immigration consequences of a guilty plea, that constitutes ineffective assistance under the first prong of Strickland” [466 US 668] … .

With respect to the issue of prejudice, defendant averred that he came to the United States as an asylee in 2000 and, in 2006, his status was adjusted to lawful permanent resident. According to defendant, he elected to plead guilty because counsel advised him “that it was the only way to avoid going to jail for a prolonged period of time, and because [counsel] said [he] would have a chance to prevail if [i]mmigration tried to deport [him].” Had he been aware that “criminal [possession] of a controlled substance in the third degree was a mandatory deportable crime,” defendant averred, “[he] would not have plead[ed] guilty and [would have] insisted on going to trial.” These averments, coupled with the fact that, at the time of his arrest, defendant had been residing in Schenectady County for eight years, was self-employed as a mechanic and, together with his long-term partner, was the parent of triplets, raise “a question of fact as to whether it was reasonably probable that [he] would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea” … . “As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from [his] guilty plea and that [he] was prejudiced as a result thereof, [he] was entitled to a hearing on . . . [his] CPL 440.10 motion” … . People v Marcellus, 2024 NY Slip Op 00209, Third Dept 1-18-24

Practice Point: Informing a defendant that he may be deported based upon his guilty plea when deportation is mandatory constitutes ineffective assistance of counsel.

 

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DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE PLED GUILTY IF HE WERE AWARE HE COULD BE DEPORTED BASED ON THE PLEA; THEREFORE THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, remitting the matter, determined the judge should not have denied defendant’s motion to vacate his plea without holding a hearing. Defendant alleged he would not have pled guilty if he had been informed of the deportation consequences:

According to the defendant’s motion and exhibits, he allegedly immigrated to the United States at approximately 17 years of age, resided here for approximately 26 years, was employed in the United States, and had two children here. Under the circumstances of this case, the defendant’s allegations in his motion that he would not have pleaded guilty and would instead have gone to trial had the court warned him of the possibility of deportation, were sufficient to raise an issue of fact in that regard … . Therefore, the County Court erred in deciding the defendant’s motion to vacate his plea without a hearing. People v Hernandez, 2023 NY Slip Op 06752, Second Dept 12-27-23

Practice Point: If a defendant, in a motion to vacate his plea, raises a question of fact about whether he would have pled guilty if he had know he could be deported, the judge should not deny the motion without holding a hearing.

 

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THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

The Second Department, remitting the matter, determined defendant was not warned about the possibility of deportation based upon his guilty pleas. The matter was sent back to allow defendant to move to vacate the pleas:

The defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … .

… [W]e remit the matters to the Supreme Court … to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . In its report to this Court, the Supreme Court shall set forth whether the defendant moved to vacate his pleas of guilty and, if so, its determination as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Jean, 2023 NY Slip Op 06380, Second Dept 12-13-23

Practice Point: If the record does not demonstrate a defendant was aware of the deportation consequences of a guilty plea, the matter will be remitted to give the defendant the opportunity to move to vacate the plea. The issue need not be preserved for appeal.

 

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IN A PROCEEDING SEEKING FINDINGS TO ENABLE A CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) THE SUBMISSION OF CERTIFIED COPIES OF BIRTH CERTIFICATES OR DEATH CERTIFICATES IS NOT REQUIRED; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Family Court, determined this proceeding seeking findings to enable the child to apply for special immigrant juvenile status (SIJS) should not have been dismissed on the ground that certified copies of birth certificates and/or death certificates were not submitted:

… [P]etitioner … commenced this proceeding pursuant to Family Court Act article 6 to be appointed as the guardian of the child. Thereafter, the petitioner moved for the issuance of an order … making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). … Family Court dismissed the petition and denied the petitioner’s motion. …

… [T]here is no express requirement to submit certified copies of birth certificates or death certificates in a proceeding such as this pursuant to Family Court Act § 661(a) … . …[S]ince the court dismissed the petition without conducting a hearing or considering the child’s best interests, we remit the matter to the Family Court … . Matter of Anuar S. A. O. (Yari C. B. M. Lizeth O. M.), 2023 NY Slip Op 03353, Second Dept 6-21-23

Practice Point: Certified copies of birth certificates or death certificates need not be submitted in a proceeding for findings enabling a child to apply for special immigrant juvenile status (SIJS). Here the proceeding should not have been dismissed on that ground and the matter was remitted for a determination on the merits.

 

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FAMILY COURT SHOULD HAVE GRANTED THE GUARDIANSHIP PETITIONS AND MADE FINDINGS ENABLING THE CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATE (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the guardianship petitions should have been granted and findings enabling the children to apply for special immigrant juvenile status should have been made:

… [T]he record supports a finding that the children are under the age of 21 and unmarried, and, since we have appointed the petitioner as the children’s guardian, the children are dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, the record supports a finding that the children’s father is deceased, and therefore, reunification is not possible … . Lastly, the record supports a finding that it would not be in the best interests of the children to return to El Salvador, their previous country of nationality or country of last habitual residence … . Matter of Jose S. S. G. (Norma C. G. C.), 2023 NY Slip Op 03350, Second Dept 6-21-23

Practice Point: The criteria for enabling children’s applications for special immigrant juvenile status (SIJS) explained in some depth.

 

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FAMILY COURT SHOULD HAVE APPOINTED MOTHER GUARDIAN OF THE JUVENILE, DISPENSED WITH SERVICE ON FATHER, AND MADE FINDINGS TO ALLOW THE JUVENILE TO APPLY FOR SPECIAL JUVENILE IMMIGRATION STATUS (SJIS); ALL OF THE COMPLICATED, INTERTWINED STATUTORY LAW EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been appointed guardian of the juvenile and the court should have made findings to allow the juvenile to apply for special immigration juvenile status (SIJS). Family Court should not have required a birth certificate to prove the juvenile’s age:

Family Court Act § 661(a) permits the Family Court to appoint a guardian for a youth between the ages of 18 and 21 in order to establish that the youth is “dependent on a juvenile court” (8 USC § 1101[a][27][J][i]) for purposes of an application for SIJS … . The provisions of the Surrogate’s Court Procedure Act (hereinafter SCPA) apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the provisions of the Family Court Act … . …

… [T]here is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) … . … [T]he Family Court is only required to ascertain the juvenile’s age, and there is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age (see id.; SCPA 1706[1]). Here, for purposes of this proceeding pursuant to Family Court Act § 661(a), the record supports a finding that the child is under the age of 21 … . …

Family Court should have granted the guardianship petition and the mother’s motions to dispense with service on the father and for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Matter of Joel A. A. R. (Eddy A. A. G.), 2023 NY Slip Op 02881, Second Dept 5-31-23

Practice Point: Here the complicated, intertwined statutory law controlling special juvenile immigration status (SJIS), as well as the related evidentiary requirements in Family Court,  are explained in some depth.

 

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