*954In its statement of decision, the trial court rejected all of Kao's statutory wage claims. It concluded Kao was a non-employee "guest" entitled to no compensation for the 11 months he worked at Joy Holiday before receiving his H-1B <mask>. It further found, in reliance on the testimony of defendants' accountant, that the value of plaintiff's total compensation package after receiving the H1-B visa "placed plaintiff over the minimum salary for an exempt employee." The court found no failure to provide adequate wage and hour statements given Kao's status as a non-employee then as an exempt employee and ruled permissible Joy Holiday's delay in paying final compensation.


Katz Park Ave. Corp. v Jagger (11 NY3d 314 [2008]), relied upon by petitioner, does not dictate a contrary result. That case supports the proposition that a foreign citizen legally in the United States pursuant to a tourist <mask> — the issuance of which requires the holder to have a “principal, actual dwelling place” outside the United States (id. at 317) — may not properly assert primary residence status under rent stabilization. In so holding, the Court of Appeals expressly left open the separate, distinct issue, now before us, as to whether a person in this country illegally “may have a primary residence in New York for rent regulation purposes” (id. at 318). For the reasons stated above, we answer that question in the affirmative.


Mei and Wong met in China in October 2013 after Mei posted a personal ad in a Chinese-language newspaper. They married one month later. At the time, Mei lived in China and Wong lived in the United States. They spent the first two and a half years of their marriage apart, waiting for her <mask> to be granted. They spoke every day on the phone, however, and Wong visited Mei in September 2014.


The mere fact that a person enters the United States on a non immigrant <mask> does not establish as a matter of law that she may not acquire a domicile in this country (Jacoubovitch v Jacoubovitch, 279 App Div 1027, app den 279 App Div 1078; Taubenfeld v Taubenfeld, 276 App Div 873, rearg and app den 276 App Div 918, supra). The alien’s intention to remain permanently in the United States does not make it unlawful for her to have entered the United States as a non immigrant (Brownell v Gutnayer, 212d 462, 464; see excellent discussion in Williams v Williams, 328 F Supp 1380, 1384), and her arrival under a temporary visa is not enough to prevent the alien from becoming a resident of this State for purposes of maintaining an action for divorce (Townsend v Townsend, 176 Misc 19, 20). It is clear that an alien can retain her foreign nationality and citizenship and still establish a domicile in New York in the same way as a United States citizen can (De Pena v De Pena, 31 AD2d 415, 417; Matter of Appleby, 106 NYS2d 294, 300, affd 279 App Div 993). The alien status can, however, operate as an evidentiary fact against the person’s *344alleged intention to remain in the State permanently (51 ALR 3d 223, 229).


It has been generally noted that beyond the duty to confirm travel reservations, travel agents should be expected to provide information which is necessary and of importance to the traveler. (See, Recent Developments, Travel Agency Liable to Travelers When Its Failure to Confirm Reservations Ruins Vacation, 74 Colum L Rev 983, 993-994 [1974].) More specifically, in a case closely analogous to the facts here, the court in Compagnie Nationale Air France v Castano (358d 203 [1st Cir 1966]) ruled that where an international air carrier, acting as a travel agency, failed to warn a passenger, upon his purchase of a ticket, that he would be prevented by immigration officials from entering the country of his destination unless he had a proper <mask>, that carrier would be liable for all damages and injuries proximately flowing from the passenger’s exclusion from that country due to his failure to secure a visa. This holding recognizes that the travel agent is not merely a dispenser of tickets but also a fiduciary on whose expertise a traveler may reasonably rely.


First, defendant contends that in finding that defendant’s children were all residing in the Dominican Republic at the time of her plea {De Jesus II at *10), the court overlooked and misapprehended the fact that, by that time, the U.S. Department of Justice had approved the <mask> applications of all of defendant’s five children and that all that remained in order to relocate them to New York was the ministerial matter of consular processing. Significantly, although the PSI stated that defendant’s former husband, Jose Polanco, “and [her] children live in the D.R.” (PSI at 4), it failed to mention that the children’s visa applications were approved and that they were on the verge of coming to the United States legally. At the hearing, when defendant was asked whether she made “arrangements to have [her] children come to the United States and join [her] to live here,” defendant replied, “My husband did the papers.” (Transcript of proceedings, Feb. 2, 2011 [tr], at 20.) Based upon this testimony, the court misapprehended that at the time of the plea, the only step taken in the children’s visa application process was that Mr. De Jesus had prepared the application papers. Based upon defendant’s submission of copies of certificates attesting to the approval of the children’s visa applications prior to the time of defendant’s plea, the court now understands that defendant and her husband had taken the visa application process nearly to completion, and that all that remained was for the children to pick up their visas at the proper consular post. (Kratka affirmation, exhibit D.)


The Appellate Division, Second Department, has made it clear that the fact that a defendant had previously been convicted of a removable offense does not necessarily require a finding that he was not prejudiced by his counsel’s failure to advise him of the removal consequences of his plea (see Picca, 97 AD3d at 183). Similarly, here, the fact that defendant’s <mask> had expired before he entered into his guilty plea, thereby rendering him deportable, does not necessarily require a finding that he was not prejudiced by virtue of the mandatory deportation consequences of the instant plea, particularly since, without the instant conviction, he may have qualified for certain discretionary relief, such as cancellation of his removal from the United States or an adjustment of his immigration status (see 8 USC § 1229b; Padilla, 559 US at 363-364). Furthermore, the record demonstrates that, although defendant’s visa had expired before he entered into his guilty plea, the notice to appear in the removal proceeding was dated more than a year after defendant took his plea. Thus, as in Picea, *27defendant’s removal from the United States was not imminent at the time he took his plea (see Picca, 97 AD3d at 185).


The BIA dismissed Pascal’s appeal. It held that because Pas- cal was convicted of an aggravated felony for which he was sen- tenced to ten years in prison—robbery with a deadly weapon—and another crime involving moral turpitude—burglary—he was stat- utorily ineligible for asylum and withholding of removal. The BIA held that because Pascal did not challenge the immigration judge’s finding that he did not establish a probability of torture by the Hai- tian government on appeal, he waived any challenge to the adverse CAT finding. The BIA also denied Pascal’s motion to remand. The BIA determined that because Hughes’s <mask> petition had not yet been approved, Pascal was not eligible to adjust his status on that basis. The BIA therefore held that Pascal was not eligible to adjust his status and could not obtain relief from removal through a standalone waiver of inadmissibility. Pascal filed a petition for re- view of the BIA’s decision with this Court. While that appeal was pending before us, Pascal filed a mo- tion with the BIA to reopen and remand his removal proceedings to the immigration court. In that motion, Pascal explained that USCIS had approved Hughes’s I-130 petition. He argued that de- spite his criminal history, he had presented evidence—including his son’s medical condition and the emotional hardship to his wife— establishing his prima facie eligibility for adjustment of status and prima facie eligibility to seek a waiver of inadmissibility in conjunc- tion with his application for relief. USCA11 Case: 20-13993 Date Filed: 02/03/2022 Page: 7 of 10


On March 3, 2017, Ogunmowo filed a motion to vacate his conviction under section 1473.7, arguing his conviction was legally invalid because his *73trial counsel incorrectly advised him about the immigration consequences of his guilty plea and he was prejudiced as a result. Ogunmowo's trial counsel, Jerry Kaplan, stated in his affidavit submitted with the motion that he "recall[ed] Mr. Ogunmowo being concerned about what would happen to his immigration status if he was convicted in this case." As discussed above, Kaplan admitted in the affidavit that although he did not investigate, inform himself about or seek to protect Ogunmowo from any immigration consequences of the plea-because he understood he "had no obligation to investigate" this collateral consequence of the plea-he nonetheless "advised Mr. Ogunmowo that because he was a lawful permanent resident of the United States, that he would not face any immigration consequences because of his plea in this case." As Kaplan further conceded in the affidavit, his advice "was wrong." As set forth in the 2004 notice of removal proceedings against Ogunmowo, an alien8 convicted of violating a law relating to a controlled substance was ineligible for a <mask> and ineligible for admission to the United States. ( 8 U.S.C. § 1182(a)(2)(A)(i)(II).) Being deemed inadmissible rendered an alien subject to removal. Thus, Ogunmowo's conviction made him subject to removal from the United States.


Adequacy requires “balancing the value of that settlement against the present value of the anticipated recovery following a trial on the merits, discounted for the inherent risks of litigation.” (Klein at 73; see Colt Indus., 155 AD2d at 160 [fairness is determined by weighing plaintiffs likelihood of success against settlement offered].) Other factors to be considered are the support of the class members, the opinion of counsel, lack of collusion and counsel’s and class representatives’ adherence to fiduciary standards. (Hibbs v Marvel Enters., Inc., 19 AD3d 232, 233 [1st Dept 2005]; Avena, 85 AD2d at 153; see Klurfeld v Equity Enters., 79 AD2d 124, 133 [2d Dept 1981] [factors to be considered in reviewing class settlement are: likelihood of success, support of parties, judgment of counsel, good faith and nature of law and fact]; Joel A., 218d at 138 [lack of collusion is factor to be considered]; Wal-Mart Stores, Inc. v <mask> U.S.A., Inc., 396d 96, 116 [2d Cir 2005] [“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery” (internal quotation marks omitted)].) Consideration of the relevant criteria weigh in favor of approval here.


Residence for public school education purposes envisions a physical presence with the intention of remaining. Residence solely to achieve the right to attend a particular school would fail to meet the traditional test of residence *397(Matter of Drayton v Baron, 52 Misc 2d 778). Conversely, all citizens as well as others are free to establish a residence of their choice notwithstanding that the residence may incidentally afford the opportunity to attend a particular school (Plyler v Doe, 457 US 202). Petitioner having the privilege to establish a residence within this State has done so by choosing to live in the home of a long-standing family friend. The testimony establishes that petitioner has no other residence available to him except perhaps with his mother who resides and is a domiciliary of Jamaica, West Indies. I use the word “perhaps” for the reason that petitioner is not a citizen of Jamaica, West Indies, and his passport reveals a necessity to periodically renew <mask> status to permit him to remain with his mother. The Uniondale School District has provided no authority which would require an infant citizen to continue residing outside his homeland and deny him “residence” merely because his parent is a nonresident alien. The argument in summation to the effect that petitioner, for school education purposes, must remain a “visitor” in his own land must be rejected by this court as an unreasonable restriction upon the privilege of all citizens to establish residence and enjoy equal protection under the law. As heretofore noted, petitioner has no residence within the United States nor has another residence been made available to him. Finally, I find respondents eliciting from petitioner that the establishment of this residence was in part for educational purposes, should not work a contrary result. Under the circumstances here presented, petitioner has no other residence. His motivation makes his taking up residence no less bona fide than had he re-entered this jurisdiction for work, health or other noneducational purposes (Martinez v Bynum, 461 US_). To find otherwise would, educationally speaking, treat petitioner as a “man without a country”. Petitioner should not be relegated to such a position of nonstatus for educational purposes where he finds himself within respondent’s school district solely as a result of circumstances not of his doing nor as the result of design or planning relative to which respondent should be heard to complain.


Labor Law § 527 (1) (a) disqualifies a claimant from receiving unemployment compensation benefits for any period during which the claimant is not able or available for work. To support its determinations, the Unemployment Insurance Appeal Board relied on the Federal Department of Labor’s interpretation on the subject as expressed in its Unemployment Insurance Program Letter No. 1-86: "Under the laws of all States, a claimant must be 'able and available’ to work to *836be eligible for unemployment compensation. In addition to meeting other State availability requirements, an alien must be legally authorized to work in the United States to be considered 'available for work.’ Therefore, an alien without current, valid authorization to work from the INS is not legally available for work and not eligible for benefits” (51 Fed Reg 29714 [1986]). In addition, claimant conceded that her H-l <mask> restricted her employment to a single employer and that in order for her to have worked for any other employer, she would have had to obtain an amendment to her visa. Substantial evidence in the record supports the Board’s finding that claimant was not legally authorized to work once her employment with Merce Cunningham Dance Company ceased. The Board’s decision that claimant was unavailable for work when she sought unemployment benefits has a rational basis (see, Matter of Fisher [Levine], 36 NY2d 146) because she was legally barred from working for any other employer (see, Matter of Zapata [Levine], 50 AD2d 681, 682; see also, Pinilla v Board of Review Dept. of Labor & Indus., 155 NJ Super 307, 311, 382 A2d 921).


Bank v. Off. of Comptroller of Currency, 362 F.3d 333, 336 (5th Cir. 2004). We thus must raise the issue of Amin’s noncompliance on our own initiative. Fort Bend Cnty. v. Davis, 139 S. Ct. 1834, 1849 (2019) (noting that “[u]nlike most arguments, challenges to subject-matter jurisdiction” may be raised at any time by the parties and “courts must consider them sua sponte”). The jurisdictional question thus turns on whether Amin was required to appeal the <mask> denial to the agency’s Appeals Unit. USCIS regulations provide that “[t]he denial of a petition for classification [as a noncitizen with extraordinary ability] shall be appealable to the Associate Commissioner for Examinations.”3 8 C.F.R. § 204.5(n)(2). At first glance, the word “shall” seems to mandate exhaustion. See Murphy v. Smith, 138 S. Ct. 784, 787 (2018) (“[T]he word ‘shall’ usually creates a mandate.”). But we do not read a word in isolation; we must look at the “specific context in which that language is used.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). If the regulation stated that a classification “shall be appealed,” then exhaustion would be mandatory. Cf. Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 710 (5th Cir. 2010) (finding administrative appeal mandatory when regulation said that the NTSB “shall review” initial agency decisions). But this regulation does not. It provides that the classification “shall be appealable.” 8 C.F.R. § 204.5(n)(2) (emphasis added). The most natural reading, then, is that the regulation allows but does not mandate appeals from extraordinary ability visa denials. See Appealable,


An H1-B <mask> allows employers to temporarily employ foreign workers in specialty occupations requiring "theoretical and practical application of a body of highly specialized knowledge" provided the workers receive at least the prevailing wage for their occupation. (8 U.S.C. §§ 1101, subd. (a)(15)(H)(i)(b), 1184, subd. (i)(3)(A) ; Fragomen et al., H1-B Handbook (2017 ed.) §§ 1.20, 1.21, 2.28.) Joy Holiday's H-1B application said it wished to employ Kao as a computer systems administrator working "at least 20 hours per week with an hourly salary of $29.30."


As the pregnancy progressed, the couple fought with increasing frequency. These arguments culminated in the first of a series of breakups in the spring of 2008. Following a brief reconciliation, the couple broke up a second time in June 2008. While pregnant, defendant asked the County of Sacramento Department of Child Support Services to obtain an order requiring J.C. to pay child support. Defendant also traveled to South Korea to see her family, returning to the United States on a one year <mask> in July 2008.


As to the latter point, the plaintiff contends that her residency began in September, 1973, when she and her husband first came to this country on his Fulbright professorship, and continued up to the commencement of the action. The defendant, on the other hand, claims that the one-year requirement has not been met asserting that plaintiff’s residency should be counted from January 24, 1975, the day she returned to the United States on her student <mask>.


The second case Sheppard Mullin cites, <mask>,supra, 241 F.Supp.2d 1100, also involved a motion to disqualify Heller in a case involving a potential *612future conflict. First Data, which was developing a system to processes credit card transactions, asked Heller to represent it in a patent infringement action pending in Delaware. The parties recognized a possible future conflict with Visa, with whom Heller had a longstanding relationship. Heller informed First Data that although it saw no current conflict in representing First Data in the Delaware action, it would only agree to represent First Data if First Data agreed to permit Heller to represent Visa in any future disputes, including litigation, that might arise between First Data and Visa. First Data agreed, and signed an engagement letter that clearly stated these terms. (Visa, at p. 1102,.)


The facts established by defendant's declaration and testimony showed not only counsel error, but also included defendant's own error in believing that a negotiated plea calling for no time in custody would avoid making him deportable, and in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. The trial court made no express or implied credibility determination for or against defendant, as the ruling was based upon a finding that defendant had not demonstrated ineffective assistance of counsel or prejudice under Padilla , and therefore impliedly under the guidelines of Strickland . However, defendant's claims of error were supported by his former attorney's undisputed testimony that he told defendant only that the charge could subject him to deportation and that "we're going to get it down to a misdemeanor and expunged early and maybe that will help"; that he misunderstood the potential immigration consequences and the effect of expungement or reductions of felonies in immigration cases; and that he did not explore possible alternatives to pleading to an aggravated felony. Finally, defendant provided evidence of his misunderstanding at the time of his plea, due to his and counsel's errors. It was only after his conviction was expunged and reduced to a misdemeanor that defendant consulted an immigration attorney to apply for a permanent resident <mask> on the basis of his marriage to a United States citizen. He then learned of the true immigration consequences of his plea.


At one point, we called for further briefing on whether there was sufficient evidence that defendant provided any nonlegal assistance or advice. The testimony at trial seemed to portray her as providing legal advice and assistance - for example, about the particular <mask> that a client might be qualified for and about how to obtain that visa. If that was all she did, it would seem that she was simply not guilty.


The problem here is whether a person on a transit <mask> can establish domicile to confer jurisdiction upon a court to sever a relationship created by marriage. In Taubenfeld v. Taubenfeld (276 App. Div. 873-874), the parties to a marriage not unlike the one considered herein, the court held, though the plaintiff in that case was in the United States and within the State of New York on a transit visa, on an appeal from Special Term dismissing the proceeding instituted by the plaintiff for a decree of divorce on the ground that the plaintiff had no domicile within the jurisdiction of the court, that she, the plaintiff therein 1 ‘ may maintain this action, even though she is not domiciled in this State, because it affirmatively appears that she was actually sojourning or dwelling here at the time the offense was committed and the action was commenced. * * * In any event,


There is no clear-cut decision on the problem presented to me in this case. It would seem that a person who was here on a transit <mask> cannot establish a domicile, which would entitle him to institute a proceeding for a divorce in our courts. However, the Appellate Division of the Supreme Court in the Second Department, in the case of Jacoubovitch v. Jacoubovitch (279 App. Div. 1027), said, “ In this action for separation both parties are aliens and were permitted to enter this country on nonimmigrant visas in connection with defendant’s employment in this State for the United Nations. They have lived in the County of Nassau. The appeal is from a judgment dismissing plaintiff’s complaint on the ground that neither of the parties established domicile in this State.” The Appellate Division reversed the judgment of the court below on the law and the facts. Mr. Justice Wenzel concurred with the finding of his confreres on the authority of Taubenfeld v. Taubenfeld (supra).


“All the rest, residue and remainder of my said estate, real, personal and mixed, of every name or nature whatsoever, I give, de<mask> and bequeath unto my executors and trustees herein named, and to their successors, with full power to sell all or any part of my .said estate as they may deem advisable from time to time, at either public or private sale and upon such terms as they shall deem proper, and to invest and reinvest the proceeds from such sales or any moneys that may come into their hands as they think best, without regard to any statute or law regulating such investments and without any personal liability of either of my said executors, or their successors, of any such action, or for any loss or depreciation my said estate may suffer because of such investment; to' be held by my said executors and their successors in trust for the following purposes and uses only, to wit:”


“ Sec. 212(a). Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: # * * “ (15) Aliens who, in the opinion of the consular officer at the time of application for a <mask>, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges;” The visa division of the State Department has apparently long required that affidavits of support contain averments similar to those which were made by these defendants as hereinabove quoted in the said Immigration and Nationality Act. There is no specific statutory provision upon which such requirement rests. However, as aliens are £ £ ineligible to receive visas ’ ’ if £ 1 in the opinion of the consular officer at the time of application for a visa ’ ’ they £ 1 are likely at any time to become public charges ’ ’, the visa and consular officials charged with the administration of the statute apparently came upon the idea of insisting upon affidavits such as the one in suit in order to lessen the likelihood that an applicant for a visa would in fact at any time become a public charge. The statute deals only with considerations of likelihood and probability. It does not evidence any intention to fasten a contract upon anyone which would insure the support of the immigrant for any fixed period of time, or until he becomes a citizen. No case so holds; no persons responsible for the administration of the statute have ever taken such a view. It has long been the fixed administrative view that these affidavits of support impose only a moral obligation. Various exhibits have been submitted to the court which so indicate. A pamphlet titled ££U. S. Befugee Belief Program” (Dept, of State Pub. 5724, General Foreign Policy Series 96, Beleased Jan., 1955) and distributed generally by the Department of *618Documents, United States Government Printing Office, at a price of five cents, contains the following questions and answers:


Staller had difficulty obtaining a <mask> to enter the United States because of her professional activities, and the parties resided in Munich, Germany, during the first year of the marriage. Just prior to the birth of their son, Staller obtained a nonimmigrant visa (this type of visa is temporary and does not allow an alien to remain in the United States indefinitely). The parties’ son, Ludwig Maximilian Koons, was born in New York City on November 29, 1992. They live in Koons’ three-story 13-room townhouse on Manhattan’s East Side, and have travelled in the United States and to Europe.


the mere fact that the plaintiff entered the United States on a transit <mask> does not establish as a matter of law that she may not acquire a domicile.” Presiding Justice Nolan concurred and added, “ In my opinion the record before the court establishes prima facie that at the time of the commencement of the action plaintiff was a resident of the State of New York.” In the Taubenfeld case, as already adverted to, the plaintiff was here on a transit visa as is the respondent here on a transit visa. The rule laid down in Taubenfeld v. Taubenfeld (supra) is that all that was necessary for a plaintiff to institute a proceeding for a decree of divorce was that she was a resident of the State of New York at the time of the commencement of her action and established a domicile here.


The basic issue before the court is one of fraud. An examination of the record indicates that this case is a classic example *265of a scheming, avaricious woman’s fleecing an ignorant and illiterate man of his life savings and earnings. The credible testimony and documentary evidence clearly establish that defendant told plaintiff innumerable lies in lier successful efforts to get him to entrust her with all of his moneys. She falsely and fraudulently told plaintiff that as an alien he could not own property in this country in his own name. She fraudlently advised him that because of his alien status, without <mask>, he could not inherit property in this country. Likewise, she told him that in order to avoid confiscation of his moneys by the Federal Government, it would be necessary for him to marry her and place these moneys in a joint bank account with her.


*6214. The fourth review ("fourth review"), entitled "A Real Nightmare I'm Trying to Forget," allegedly posted on April 28, 2011 by a Doe defendant identified as "Former Business Associate in San Jose, CA," provided in full as follows: "Pros- Solid team-The primary thing that got me and my colleagues going at ZL was the team we worked with. Despite management trying its best to suppress friendship and bonding, we shared information freely among one another, and never threw anyone under the bus. [¶] The ZL products themselves are of high quality, led by a gifted CTO and development team. [¶] If you can grab onto a key project and own it, you will be able to grow with it very *587fast. This is where a 'start-up mode' works to your advantage-you can manage projects from ground up to finish. [¶] Cons -Minimal potential for growth-Unfortunately, management tends to tell potential new hires that '1 year at ZL is worth 3 years in the "real world", and that working in a big company is a waste because you are pigeon-holed and won't get to do anything of value'. While this might be true in a start-up that empowers its employees, unfortunately, it does not [sic] at ZL. Employees are typically given tasks in pieces that may or may not be used, and feedback from management that has no real management experience is ultimately useless. There are no annual reviews, or performance feedback meetings, unless you request them, and then they are usually a meeting of 'what you did wrong'. [¶] Constantly harassed-ZL used to hire only immigrants with '<mask> issues'. It was clear that the management felt that they were most likely to stay longer, and tolerate more from management. If management did not like someone for any reason, rather than address the matter privately, they publicly humiliate the employee and reduce his/her importance in the company by changing a title, or taking away projects. [¶] Mom-and-pop environment-ZL is essentially run by a CEO and his wife (admin/HR/accounting). There is zero accountability and if you have a problem with anything-there is not much you can do about you [sic]. Also they nickle-and-dime [sic] employees in every way-from benefits to expense reports. The management also fosters unhealthy competition and backstabbing, which he views as 'natural aggression' amongst 'high-flyers'. [¶] High turnover-ZL has been recruiting from different schools over the past few years-usually going after one school, building up a bad reputation, and then moving on to another. New hires quickly report back to the admissions or recruiting teams at their alumni, making it near to impossible for the company to continue recruiting at the same place year-after-year. People with visa issues aside, most new hires make the decision to leave within 3-6 months. [¶] Advice to Senior Management- Unless the ZL management is willing to overhaul its current strategy, or hire a layer of middle management (with full authority, not just title), the future is a little bleak. It will remain a 'late-stage start-up' till it runs into the ground. Management has to realize that you can no longer lead only with the stick, but with the carrot [sic], and *622that people must be managed with compassion and respect. A company is nothing without its people, and ZL is constantly in search of good people."


Barocio , supra , 216 Cal.App.3d 99, 264 Cal.Rptr. 573, similarly did not create an independent pre- Padilla duty to advise defendants of immigration consequences of *269their pleas. In that case, the defendant's trial attorney failed to seek a judicial recommendation against <mask>. ( Barocio , at p. 103, 264 Cal.Rptr. 573.) There was no issue about counsel's advice to the defendant. Indeed, the court in Barocio specifically concluded that while section 1016.5 imposed a duty on the court to warn of the possible immigration consequences of a plea, counsel had no corresponding duty because immigration concerns were "collateral consequence[s]" of the plea. ( Barocio , at pp. 107-108, 264 Cal.Rptr. 573.) The only deficiency found in Barocio was trial counsel's failure to advise the defendant of the right to a recommendation against deportation, a special mechanism that existed under federal law at that time. ( Id. at pp. 109-110, 264 Cal.Rptr. 573.) The case was remanded to the trial court for resentencing to allow counsel to confer with his client regarding requesting a judicial recommendation against deportation and carry out the client's wishes. ( Id. at p. 111, 264 Cal.Rptr. 573.) Novoa makes no similar complaint here.


When one acts with criminal negligence, he fails to perceive the risk of harm from his conduct. In contrast, although the term "moral turpitude” has never been defined by the Legislature, "moral turpitude” has been most commonly defined by the courts as: " 'An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ ” (<mask> — "Moral Turpitude”, Annot., 23 ALR Fed 480, 493, and cases cited therein.) Crimes which do not involve a vicious motive or a corrupt mind are, therefore, not intended to be encompassed within the statute’s reach, but, on the contrary, were specifically meant to be excepted. (United States v Karnuth, 30d 825.)


This court finds that the crimes the defendant stands convicted of are not crimes arising out of a single scheme of criminal misconduct (see Nason v INS, supra, and Pacheco v INS, supra). Finding the 13 crimes did not arise out of a single scheme, however, does not bar the granting of 13 RADs to preclude the INS from using any of these convictions as grounds for <mask>. Granting a RAD is always an exercise of judicial discretion. Nonetheless, this court is in agreement with the counsel for the INS that there are no facts or circumstances in this case which would justify this relief. Indeed, considering the number and nature of these convictions, it would be an abuse of discretion to grant the relief sought.


With respect to whether plea counsel informed defendant of the immigration consequences of his plea, the People make much of the fact that Daly-Rivera had written a letter to the assigned prosecutor shortly before defendant entered his guilty plea stating that he had discussed “every possible facet” of the proposed plea agreement with defendant and was “confident” that the case would be resolved at the next court appearance. (People’s exhibit 2, letter from Victor G. Daly-Rivera, Esq. to Kathleen Sullivan, Esq., dated Aug. 25, 1988 [1988 letter]; tr, Feb. 17, 2012, at 156.) During his testimony, however, DalyRivera had no recollection of the meaning of the quoted phrase (tr, Feb. 17, 2012, at 160), nor of any conversations he had had with defendant in preparation for the plea. (Id. at 147.) He could not recall whether he had advised defendant of the immigration consequences of his plea (id.), nor what his general practices were in 1988 regarding advisement of clients as to the immigration consequences of their pleas. (Id. at 153.) He could only offer that the letter was “unusual,” and that “there had to have been something” which occasioned its writing. (Id. at 160.) He also had no recollection of what he had meant by the phrase “every possible facet” in the 1988 letter. (Id. at 160.) He also testified that while he then had a criminal practice with numerous Spanish-speaking clients born outside this country, he “probably did not focus” on their immigration status in 1988. (Id. at 162.) Daly-Rivera candidly stated that he had no particular understanding of the immigration consequences of a criminal conviction at the time (id. at 163), probably did not take any continuing legal education courses in immigration law in the 1980s (id. at 165) and probably did not inquire into the immigration status of any of his criminal clients, including defendant, in the 1980s. (Id. at 162.) Given plea counsel’s doubts about the limits of his own knowledge of and practices with respect to immigration law at the time, and given his lack of memory of his representation of defendant itself (id. at 146-148), I find defendant’s recollection that his plea counsel did not advise him concerning the <mask> or other immigration consequences of his plea reflects the more likely scenario. Defendant’s sole experience with plea negotiations would be far more memorable *401to him than to his plea counsel, who routinely participated in numerous such negotiations over the years.


The defendant was indicted on November 15, 1977 for criminal possession of a controlled substance in the fifth degree and criminal possession of marihuana in the fifth degree. Bail was set at $1,500. The defendant, a Columbian national, surrendered his passport at that time. His visa having expired, the defendant was taken into custody by immigration officials of the United States Government. The District Attorney’s office was kept apprised of all pending <mask> proceedings. The defendant was voluntarily de*335ported without his passport having been returned to him. The District Attorney indicated that he did not object to the deportation, although he did not expressly consent to it. The defendant is presently unable to re-enter the country to defend himself under the pending indictment.


In his brief, appellant relies on Padilla v. Kentucky (2010) 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. There the court held the Sixth Amendment requires an accused entering a guilty plea to be advised of <mask> consequences. ( Id . at p. 374, 130 S.Ct. 1473.) However, the case does not suggest a constitutional obligation to remind an accused of these concerns in subsequent appearances relating to the same offenses.


In January 2002, the San Mateo County District Attorney charged Morales in an amended information with felony possession for sale of a controlled substance, methamphetamine ( Health & Safety Code, § 11378 ), and the felony transportation, importation, and selling of a controlled substance, also methamphetamine (id. , § 11379). Both counts also included weight enhancement allegations. As part of a negotiated disposition, Morales, represented by counsel, entered a no contest plea to possession for sale of a controlled substance. He also admitted the truth of the accompanying weight enhancement allegation, but the court later struck it and dismissed the transportation count. It sentenced Morales to a three-year prison term, with 199 days of credits. Morales served his sentence, voluntarily departed *779the United States for Mexico in the face of <mask> and reentered the United States shortly thereafter.


As indicated, defendant avoided an incarceratory sentence specifically because of counsel’s effort in obtaining the disposition that he did. The defendant and his codefendant were originally charged with one count of criminal sale of a controlled substance in the third degree, a class B felony (Penal Law § 220.39 [1]), and one count of criminal possession of a controlled substance in the third degree, also a class B felony (Penal Law § 220.16 [1]). Had defendant opted for a trial and been convicted, he would have been exposed to a maximum of nine years’ imprisonment (see former Penal Law § 70.70 [1], [2] [a] [i]). There is no reasonable possibility that defendant would *414have risked trial, conviction, an exceptionally long period of incarceration, and subsequent <mask> when a mere probationary sentence was available. Defendant simply cannot “convince th[is] court that a decision to reject the plea bargain would have been rational” had he been fully informed of the consequences of his plea (Padilla, 559 US at —, 130 S Ct at 1485). Defendant is, therefore, unable to establish prejudice under either the state or the federal standard.


On the record before us, even if we assume Perez's motion was timely, we nonetheless conclude that Perez did not satisfy his burden of proving by a preponderance of the evidence that he is entitled to relief under section 1473.7. Simply put, the record belies Perez's contention that he did not meaningfully understand the immigration consequences of his plea. Although Perez did not speak English, a Spanish interpreter was provided for him. That interpreter stated that she translated the entire plea form for Perez. The plea form translated for Perez, initialed and signed on Perez's behalf, indicated that his guilty plea could result in his <mask>. It also indicated that if he pled guilty to certain enumerated crimes (such as felony possession *830of any controlled substance), he would be deported. In other words, the plea form, translated by an interpreter for Perez and explained to Perez by his attorney and the interpreter, informed him that he would be deported if he pled guilty. *104Further, and more importantly, the superior court explicitly informed Perez that if he were to plead guilty, he would be deported from the United States. The court was unequivocal about the immigration consequences of a guilty plea, reiterating that the federal government would not allow Perez to become a citizen of the United States. This was not a situation where the court informed a defendant that there was "a high likelihood" that he would face deportation. ( United States v. Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781, 791.) The court below left no doubt. Perez would be deported if he pled guilty. This is the only evidence in the record that is contemporaneous to Perez's guilty plea.


In a sworn affidavit dated February 12, 2014, defendant avers that in 2011, he was denied renewal of his expired green card because of his felony criminal conviction. (Defendant’s exhibit A.) Defendant consulted an immigration attorney, who advised him that his conviction subjected him to mandatory <mask>. As of February 17, 2014, when this motion was filed, there were no immigration proceedings pending against the defendant.


Tapia argued that had he known he was barred from reentry or subject to <mask> under title 8 United States Code section 1226(c) because of his conviction for a crime involving a controlled substance, or if he had been advised of the immigration consequences of his plea, he would not *576have traveled outside the United States. Tapia also argued he never would have pled to the offenses had he known of the consequences of his plea to his status as a legal resident. In addition, the motion alleged Collins rendered ineffective assistance by failing to explain the immigration consequences of the plea to Tapia.


1. The Court finds that the applicant was convicted on October 8, 2012, out of the 184th District Court, Harris County, Texas, in cause number 1363049, where the applicant entered a plea of guilty to the third degree felony offense of Assault-Family Member/Impeding Breath. However, the Court withheld a finding of guilt and the applicant *143was sentenced to a 2 year Deferred Adjudication and a $200.00 fine.... .... 8. The Court finds, based on the application, that the applicant is a legal permanent resident in the United States. 9. The Court finds based on the court reporter's record that the applicant was properly admonished and informed of the potential immigration consequences of his plea consistent with TEX. CODE CRIM. PROC. Art. 26.13. 10. The Court finds, based on the clerk's record, that on the face of the applicant's plea agreement with the State that he was admonished: "by the Court and the defense attorney that if he is in the USA illegally or is not a US citizen, he/she may be deported back to his/her country. The defendant also acknowledged in open court that neither their attorney nor anyone else has indicated or promised otherwise."4 11. The Court finds that the applicant was represented by Mr. R[.] Rodriguez ("Rodriguez") in his primary case. 12. The Court finds that the testimony offered by the applicant's previous attorney, R[.] Rodriguez, was credible. 13. The Court finds based on the credible testimony of Rodriguez, that Rodriguez was aware that the applicant was not a United States citizen. 14. The Court finds based on the Court reporter's record of Rodriguez [sic] that Rodriguez informed the applicant that a conviction could result in the applicant's potential <mask> from the country. 15. The Court finds based on the Court reporter's record of [the writ hearing] that while taking the applicant's plea the Court confirmed that Rodriguez had informed the applicant that he could be deported based upon the plea.... 16. The Court finds that the testimony from Harris County Assistant District Attorney, Tim Ballengee, [is] credible. 17. The Court finds, based on the Court reporter's record, that the testimony of Tim Ballengee referring to admonishments and immigration consequences given at the time the applicant took his plea [is] credible. 18. The Court finds that the testimony given by Officer K. Truong, referring to the strength of the State's case against the applicant [is] credible. 19. The Court finds, based on the totality of the evidence presented, assertions made, and the testimony given that the applicant was not credible.5 *14420. The Court finds the applicant's assertion that he would not have pled guilty but for the alleged deficient conduct but would have insisted on going to trial is not credible. 21. The Court finds that the applicant's plea was voluntary. 22. The Court finds that the assertion made by applicant that he was automatically deported following his voluntary plea, [is] not credible. 23. The Court finds that the applicant entered his plea agreement on October 8, 2012. 24. The Court finds that deportation proceedings were not initiated until April 22, 2013.... 25. The Court finds based on the Court reporter's record, and consistent with the Court's previous ruling, the applicant's writ is denied. Based on the findings, the habeas court made the following conclusions of law:


The Appellate Division, Second Department, has made it clear that the fact that a defendant had previously been convicted of a removable offense does not necessarily require a finding that he was not prejudiced by his counsel’s failure to advise him of the removal consequences of his plea (see Picca, 97 AD3d at 183). Similarly, here, the fact that defendant’s visa had expired before he entered into his guilty plea, thereby rendering him deportable, does not necessarily require a finding that he was not prejudiced by virtue of the mandatory <mask> consequences of the instant plea, particularly since, without the instant conviction, he may have qualified for certain discretionary relief, such as cancellation of his removal from the United States or an adjustment of his immigration status (see 8 USC § 1229b; Padilla, 559 US at 363-364). Furthermore, the record demonstrates that, although defendant’s visa had expired before he entered into his guilty plea, the notice to appear in the removal proceeding was dated more than a year after defendant took his plea. Thus, as in Picea, *27defendant’s removal from the United States was not imminent at the time he took his plea (see Picca, 97 AD3d at 185).


See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (precluding asylum for aliens who have been convicted of a “particularly serious crime,” which includes aggravated felonies); id. § 1229b(a)(3) (providing that conviction for “any aggravated felony” renders aliens ineligible for cancellation of removal); id. § 1231(b)(3)(B)(ii) (providing that an alien convicted of one or more aggravated felonies with an aggregate prison sentence of at least five years is barred from seeking withholding of removal). See 8 C.F.R. § 1001.1(p) (providing that a lawful-permanent-resident status “terminates upon entry of a final administrative order of exclusion, <mask>, removal, or recission”). See, e.g., 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crimes of moral turpitude), (II) (drug crimes). See id. § 1182(a)(6)(E)(i). See id. § 1255(a) (providing that any inadmissible alien is ineligible for an adjustment of status). See id. (providing that an adjustment of status may be granted in the discretion of the Attorney General to aliens who are eligible to receive an immigrant visa and are “admissible to the United States for permanent residence”).


As to the fourth, fifth, eighth, and ninth factors, "[a] parent's inability to provide adequate care for [his] children, ... lack of parenting skills, and poor judgment may be considered when looking at the children's best interests." Id. at 119. The evidence showed that the children were well-groomed and clean at all times, that Father's home was appropriate, and that he was a good provider. However, Father's testimony established that he first believed that Greg needed to go to the emergency room while he was giving the child a bath, but decided not to take him to the emergency room, choosing instead to finish the bath, pick Mother up from the salon, and return home. A jury could have concluded from this evidence (1) that Father exhibited poor judgment in caring for his child and/or (2) that Father caused Greg's injuries since they occurred while in his care. Further, Father had been incarcerated for the past year on pending criminal charges for injury to a child, had an immigration hold against him because he was not a United States citizen, and faced the possibility of <mask>. As a result, he was unable to take advantage of any programs available to assist him. The jury could have also determined that Father's failure to acknowledge that Greg had been injured, and his insistence that the injuries were the result of a medical condition, created a situation where Father would be unable to recognize and protect his children from future child abuse. We find that the fourth, fifth, eighth, and ninth Holley factors weigh in favor of terminating parental rights.


Accordingly, this court does not believe itself bound by the decisions of the Appellate Term. For that reason, and because I have previously expressed my own contrary views on the issue of whether prevailing professional norms in or about 1988 required a defense counsel to warn an undocumented immigrant client of the <mask> consequences of a guilty plea {see People v Sterling Taylor, Sup Ct, NY County, Oct. 28, 2011, indictment No. 6461/1992, slip op at 23 n 3), this court respectfully declines to follow People v Feliciano.


(e) Definition.--As used in this section the phrase “official detention” means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or <mask>, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.


“(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any <mask> order issued by the federal government . . . ; (v) [the written statement of the] crime victim or the victim’s representative, where the crime victim is deceased or is mentally or physically incapacitated; (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the presentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.” (Executive Law § 259-i [2] [c] [A], as amended by L 2011, ch 62 [repealing section 259-i (1) and adding factors (vii) and (viii) to section 259-i (2) .(c), to consolidate all factors governing release decisions into a single section of the parole statute; *699previously, factors (vii) and (viii) (seriousness of the offense and prior criminal history) were separately set forth in section 259-i (1) which is now repealed].) Of greater significance, Executive Law § 259-c (4) was recently amended to require the Board to promulgate new procedures in making parole release decisions. Such new procedures to be adopted “shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which inmates may be released to parole supervision.” (See L 2011, ch 62, part C, subpart A, § 38-b.)


McEntee's advice and counsel to Chen make this case materially different from those cases where counsel's performance has been held deficient. In People v. Novoa (2019) 34 Cal.App.5th 564, 246 Cal.Rptr.3d 254, the lawyer had minimal interactions with the defendant, lacked any documentation in his case file regarding discussions of immigration concerns, and there was no evidence counsel adequately explained to the defendant the immigration consequences *366of pleading guilty or attempted to negotiate any plea agreement with the prosecutor. ( Id. at pp. 587-589, 246 Cal.Rptr.3d 254.) Similarly, in In re Hernandez (2019) 33 Cal.App.5th 530, 244 Cal.Rptr.3d 894, counsel did not discuss whether a conviction could affect defendant's immigration status, had no awareness of defendant's immigration status or risk of <mask>, and did not attempt to negotiate an alternative plea to avoid any adverse immigration consequences. ( Id. at pp. 545-546, 244 Cal.Rptr.3d 894.) The defense counsel in Camacho , supra , 32 Cal.App.5th 998, 244 Cal.Rptr.3d 398, did not remember discussing immigration consequences with the defendant, misunderstood the effects of expungement or reductions of felonies in immigration cases, and did not explore possible alternatives to pleading an aggravated felony, and the defendant himself erroneously believed a negotiated plea calling for no time in custody would avoid making him deportable. ( Id. at pp. 1002-1003, 1009, 244 Cal.Rptr.3d 398.) Finally, in People v. Espinoza (2018) 27 Cal.App.5th 908, 915, 238 Cal.Rptr.3d 619, counsel could not recall what advisements he discussed with defendant, and his notes did not refer to any discussion of immigration consequences. ( Id. at p. 915, 238 Cal.Rptr.3d 619.) Unlike all of these cases, McEntee had numerous discussions with Chen about her plea, warned her of the immigration effects of her plea, and made an effort to negotiate a plea that would not have such drastic immigration consequences.


From the evidence cited ante , it is clear trial counsel did not know that pleading guilty to Health and Safety Code section 11378, which constituted an aggravated felony, would mandate <mask> of defendant. Moreover, although the trial court advised defendant that he could be deported, defendant was not informed that deportation would be mandatory . This is not a case where deportation was a possibility. This case presented a situation where pleading guilty to Health and Safety Code section 11378 mandated deportation. Trial counsel should have been aware of or researched the actual immigration consequences of pleading guilty to Health and Safety Code section 11378, and advised defendant of the immigration consequences. Trial counsel, by simply going over the Tahl form and advising defendant that he could be deported, is objectively deficient performance under prevailing professional norms.


Here, defendant complains that his plea counsel never advised him that his guilty plea “would presumptively result in [his] permanent banishment from the United States, and would render [him] permanently ineligible for lawful permanent residence in the United States.” (Aff of defendant, sworn Mar. 18, 2011, H 4.) In this case, defendant’s guilty plea to a drug conviction immediately and permanently deprived him of any avenue by which he could avoid <mask> and remain in this country legally. The elimination of defendant’s eligibility for these remedies rendered defendant subject to deportation without recourse, and therefore had direct deportation consequences for him.


In Padilla , the U.S. Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of <mask> arising from a guilty plea. 559 U.S. at 374, 130 S.Ct. at 1486. Counsel's performance is deficient if counsel fails to advise a noncitizen client with "accurate legal advice about the 'truly clear' consequences of a plea of guilty to an offense that, as a matter of law, renders him 'subject to automatic deportation.' " Id. at 360, 369, 130 S.Ct. at 1473 ; Ex parte Torres , 483 S.W.3d at 46. "A failure by counsel to affirmatively and correctly advise a defendant regarding the clear deportation consequences of his plea will render counsel's performance constitutionally deficient, thereby satisfying the first Strickland prong." Ex parte Duque , --- S.W.3d at ----, 2017 WL 4067110, at *8 (citing Padilla , 559 U.S. at 369, 374, 130 S.Ct. at 1483, 1486 ).


Based on his interactions with Deen, plea counsel did not see any reason to investigate Deen's mental competency, and counsel believed that Deen understood the proceedings. Deen specifically told plea counsel that he wanted to plead guilty and return to Sierra Leone in the fastest way possible. Because of these statements, plea counsel focused his strategy on Deen's immigration status. Deen supported plea counsel's strategy to seek possible <mask> by providing counsel with the necessary deportation information that counsel would then give to the appropriate authority. In light of Deen's statements and actions, Deen has not demonstrated why it was an unreasonable strategy for plea counsel to pursue a guilty plea and attempt to facilitate deportation, regardless of the potential availability of a defense based on Deen's mental health. "Pursuing one reasonable strategy to the exclusion of another does not constitute ineffective assistance of counsel." Barton v. State , 432 S.W.3d 741, 753 (Mo. banc 2014).


This legal malpractice action arises out of defendant attorney’s representation of plaintiff, a Venezuelan native, in connection with an immigration matter. The trial evidence showed, and it is not seriously disputed, that despite a specific directive by the United States Immigration Court that plaintiff personally appear in court on a specified date, defendant advised plaintiff not to comply; that plaintiff heeded defendant’s advice, with neither one appearing as directed on the court date; and that the intentional nonappearance, representing defendant’s purported “strategy” to “buy time,” resulted in the Immigration Court’s issuance of an in absentia <mask> order against plaintiff and his subsequent 14-month detention in “lockdown” custody. The jury unanimously returned a plaintiff’s verdict finding that defendant committed legal malpractice, a determination not now directly challenged by defendant on sufficiency or weight of the evidence grounds.


The principles found in Martinez and Lee apply equally to a prejudice analysis under section 1473.7. (See Ogunmowo , supra , 23 Cal.App.5th at p. 78, 232 Cal.Rptr.3d 529.) As the United States Supreme Court pointed out, "[C]ommon sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty *1011also involves assessing the respective consequences of a conviction after trial and by plea. [Citation.]" ( Lee , supra , 137 S.Ct. at p. 1966.) In Lee , the court found that the defendant had demonstrated a reasonable *409probability that he "would have rejected any plea leading to <mask> -- even if it shaved off prison time -- in favor of throwing a 'Hail Mary' at trial." "Lee had lived in the United States for nearly three decades [since leaving as a child], had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents -- both naturalized American citizens." ( Id . at pp. 1967-1968.)


In 1990, Congress created the status of special immigrant juvenile to provide relief from <mask> to unaccompanied or otherwise neglected children who were in the United States illegally. (See 8 USC § 1101 [a] [27] [J] [defining special immigrant juvenile]; Matter of Marcelina M.-G. v Israel S., 112 AD3d 100, 101 [2d Dept 2013] [setting out history of special immigrant juvenile statute]; Matter of Hei Ting C., 109 AD3d 100, 102 [2d Dept 2013] [same].) To be eligible for special immigrant juvenile status, a child had to be a child under federal immigration law (that is, under age 21 and unmarried); declared “dependent” on a “juvenile court”; eligible for long-term foster care; and, in addition, a state “juvenile court” had to make a factual finding that it was not in the child’s best interest to return to his or her native country. (8 CFR 204.11 [c] [implementing regulations for special immigrant juvenile statute]; Marcelina M.-G. at 107.)


Next, Morales testified. He said he was a Mexican native who entered the United States when he was 17 years old, three years before he committed the 2002 offense. In 2002, he knew there was a likelihood he would be subject to <mask>. His counsel, Loikedis, informed him of this likelihood, but did not advise him his no contest plea would certainly result in immediate deportation and permanently bar him from legal residency. Subsequently, he *781consulted with an attorney who advised him that his prior conviction would likely prevent him from obtaining a U visa and recommended he make an effort to "do something" about that conviction.


In our view, Johnson did not put an end to the "as-applied inquiry first" rule. Rather, the decision appeared to involve an exceptional statute in which the key defect could be established without examining the statute as applied to the challenger's circumstances. Indeed, after Johnson , both federal and California courts have continued to rely on the "as-applied inquiry first" rule. ( Cook , supra , 914 F.3d at pp. 549-555 [applying rule in rejecting facial vagueness challenge to criminal statute]; Doe v. Valencia College (11th Cir. 2018) 903 F.3d 1220, 1233 [relying on rule in rejecting facial vagueness challenge to school rule regulating unprotected student speech]; Ledezma-Cosino v. Sessions (9th Cir. 2017) 857 F.3d 1042, 1047 [applying rule in rejecting facial vagueness challenge to <mask> statute];


Aguilera contends that the habeas court erred in denying him relief because Escalante failed to advise him that, even though his charge would be dismissed upon completing his deferred adjudication probation, his guilty plea to family assault was a conviction for immigration purposes and it was an offense that made him subject to automatic <mask>, as required by Padilla . Aguilera also asserts that he was prejudiced because he would have insisted on going to trial had he been aware of the immigration consequences of his guilty plea. On the contrary, the State contends that Escalante had provided adequate assistance by informing Aguilera that he would be subject to deportation after his guilty plea to assault on a family member, that he should contact an immigration attorney because he would be deported, and that, in any event, he failed to establish prejudice.


Marylin G. Diamond, J. Plaintiff wife, Cynthia Wu, and defendant husband, Chao Qiang Wu, were married on May 8, 1992. On July 11, 1994, plaintiff commenced an action for divorce against defendant alleging cruel and inhuman treatment (Domestic Relations Law § 170 [1]). On January 18, 1995, the Justice then presiding over this case denied defendant’s motion to dismiss the complaint *884and granted plaintiffs cross motion to amend her divorce action to an action for annulment on the ground that defendant obtained her consent to marry him by fraud solely for the purpose of evading potential <mask> proceedings. On August 30, 1995, that court granted, on default, defendant’s motion to amend his answer to interpose a counterclaim for abandonment. Defendant alleged therein that plaintiff abandoned him by leaving the marital home without just cause on or about April 5, 1994, several months prior to plaintiffs commencement of her divorce action.


"Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, <mask>, and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences." (§ 1016.2, subd. (e).) "Once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request *826bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation." (§ 1016.2, subd. (f).)


A perusal of the report submitted to me by the Probation Department and of the official transcript taken at the time of sentencing discloses that the defendant’s alien status was known to both the court and defendant’s counsel. However, subdivision (b) of section 1251 of title 8 of the United States Code provides that a recommendation that the defendant alien be not deported may be made only upon due notice ‘ ‘ prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.” No such notice was given to the Immigration Service and, therefore, *834the court did not in any way consider that question. It would, therefore, seem meet and proper that I now, for whatever good it may do the defendant, state what I would have done if the question of possible <mask> and the recommendation to bo made in connection therewith were properly before me at the time of sentence.


The record contains the general admonishments given to Appellant during the plea proceedings, which include the following: "[I]f you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your <mask>, or your exclusion from admission to this country, or your denial of naturalization under Federal law." Appellant initialed the admonishment, indicating that he understood it.


We are cognizant that the Supreme Court has "recognized that 'preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.' " Padilla , 559 U.S. at 368, 130 S.Ct. at 1483 (quoting INS v. St. Cyr , 533 U.S. 289, 322, 121 S.Ct. 2271, 2291, 150 L.Ed.2d 347 (2001) ). However, here, in addition to the habeas court's finding that Appellant was not credible, Appellant offered sparse contemporaneous evidence to support his claim that he would not have pleaded guilty had he known that his <mask> was mandatory. In contrast to the defendant in Lee , noticeably absent here was any evidence tending to show that, during plea discussions, Appellant was concerned with the immigration consequences of a conviction rather than being concerned with jail time. Cf. Lee , 137 S.Ct. at 1967 (stating that deportation was the "determinative issue" for Lee during the plea discussions); see also Torres , 483 S.W.3d at 49 (noting that Torres's statements in his affidavits "make no mention of any special concern for potential immigration consequences, instead appearing to focus on a desire to avoid conviction and jail time").


However, when, as was the case in Padilla , federal immigration law specifies in "succinct, clear, and explicit" terms that a conviction will result in <mask>, the criminal defense attorney's duty to "give correct advice is equally clear" ( Padilla, supra, 559 U.S. at pp. 368-369, 130 S.Ct. 1473 ) and "a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea" ( Patterson, supra, 2 Cal.5th at p. 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ). Applying Padilla, supra, 559 U.S. 356, 130 S.Ct. 1473, the California Supreme Court in Patterson stated that "[t]he generic advisement under [Penal Code] section 1016.5 is not designed, nor does it operate, as a substitute for such advice." ( Patterson, supra, 2 Cal.5th at p. 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169.)7


Until its repeal in 1990, section 1251 (b) (2) of title 8 of the United States Code (Immigration and Nationality Act of 1952 § 241 [B] [2]) stated that its provisions regarding <mask> of aliens convicted of certain crimes of moral turpitude for which a sentence of a year or more had been imposed (subd [a] [4]) shall not apply:


*540*1069The Supreme Court's decision in Segura does not require a different result. In that case, the defendant was sentenced to a term of probation on the condition that he serve 365 days in county jail. (Segura,supra, 44 Cal.4th at p. 925, 80 Cal.Rptr.3d 715, 188 P.3d 649.) After his release from jail, federal immigration authorities arrested him and began <mask> proceedings. (Id . at p. 927, 80 Cal.Rptr.3d 715, 188 P.3d 649.) Segura asked the trial court to modify his probationary jail term, after the fact, to 360 days because the reduction would benefit him in the deportation proceedings. (Ibid. ) Segura argued the trial court could change the terms of the plea agreement under its statutory authority (§ 1203.3) to modify the conditions of probation without the consent of the prosecution. The Supreme Court rejected this view, holding the statutory authority to modify the conditions of probation do not extend to reducing an agreed-to prison sentence and do not permit the trial courts to override the terms of plea agreements. (Segura,supra, at p. 935, 80 Cal.Rptr.3d 715, 188 P.3d 649.) This case is different. Here, the voters passed an initiative that expressly allows defendants to seek the retroactive reduction of existing convictions and sentences and expressly requires trial courts to reduce such convictions and sentences for eligible offenders. (§ 1170.18, subds. (a) & (b) ; see also § 1170.18, subds. (f) & (g).)


Throughout the plea negotiations, Lee expressed his concern to his attorney about being deported as a result of pleading guilty. Id. Lee's attorney repeatedly assured Lee that he would not be deported if he pleaded guilty. Id. When Lee pleaded guilty, the trial court admonished him that he could be deported; however, Lee's attorney again assured him that the admonishment did not apply to him. Id. at 1968. But Lee's attorney was wrong. Id. at 1962. After pleading guilty and being sentenced to one year and one day in prison, Lee learned that his drug conviction subjected him to mandatory <mask>. Id.


Effective January 1, 2016, the California Legislature enacted two new Penal Code sections, which codified and expanded the protections for noncitizen criminal defendants. (§§ 1016.2, 1016.3.) In section 1016.2, subdivision (c), the Legislature noted that: "In [ Padilla ], the United States Supreme Court found that for noncitizens, <mask> is an integral part of the penalty imposed for criminal convictions. Deportation may result from serious offenses or a single minor offense. It may be by far the most serious penalty flowing from the conviction."


Because possession of marijuana for sale is an "aggravated felony" under federal law and was an aggravated felony at the time of defendant's plea ( 8 U.S.C. § 1101(a)(43)(B) ), <mask> and exclusion from readmission was and remains mandatory. ( 8 U.S.C. § 1227(a)(2) ; see Moncrieffe v. Holder (2013) 569 U.S. 184, 188, 133 S.Ct. 1678, 185 L.Ed.2d 727.) Expungement under section 1203.4 has no effect on the federal immigration consequences of a conviction of such a felony. ( People v. Martinez (2013) 57 Cal.4th 555, 560, 160 Cal.Rptr.3d 37, 304 P.3d 529 ( Martinez ), citing Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1174-1175.)


At the time that defendant entered his guilty plea, the failure of a lawyer to advise a defendant of the immigration consequences of pleading guilty did not deprive the defendant of effective assistance of counsel. (People v Ford, 86 NY2d 397 [1995].) However, in 2010, the United States Supreme Court held that the failure to advise a client of the <mask> consequences of a guilty plea could support an ineffective assistance of counsel claim (Padilla v Kentucky, 559 US 356 [2010]). Three years later, the Supreme Court held that Padilla broke new ground by announcing a constitutional obligation that had not previously been imposed upon criminal defense attorneys. (Chaidez v United States, 568 US —, —, 133 S Ct 1103, 1110-1111 [2013].) Therefore, the Supreme Court held that Padilla cannot be applied retroactively to convictions that became final prior to March 31, 2010 (i.e., the date Padilla was decided). (568 US at —, 133 S Ct at 1113.)1


When a trial court makes explicit credibility findings, we must give deference to those credibility determinations. See State v. Sheppard , 271 S.W.3d 281, 286 (Tex. Crim. App. 2008). A trial court acting as the sole fact finder may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Here, the habeas court explicitly found Appellant was not credible and found that his plea counsel, Rodriguez, was credible. These credibility findings are reconcilable because there was not great overlap between Appellant's and Rodriguez's testimony. However, we note one common area of testimony: whether Appellant was informed of the immigration consequences of his guilty plea. Appellant and Rodriguez each testified that Rodriguez informed Appellant that he may be deported if he pleaded guilty but did not inform Appellant that his <mask> was mandatory. At the habeas hearing, the judge indicated that she had also presided at the plea proceedings. She noted that she had written on the plea papers that Appellant had been informed that he may be deported. As Appellant and Rodriguez had testified, the judge acknowledged that Appellant had not been informed that his deportation would be mandatory following a guilty plea. Thus, it appears that the habeas court's findings regarding the respective credibility of Appellant and Rodriguez are pertinent to factual issues other than whether Appellant was informed of the immigration consequences of his plea, such as Appellant's claim that he would not have pleaded guilty had he known he would be deported, Appellant's testimony about when deportation proceedings were initiated against him, and Rodriguez's testimony regarding his meeting with Appellant before the guilty plea.


The People additionally argue that requiring defendant to enter a plea puts him in no worse position than he would be in without the plea. The People point out that the status of being a drug addict or abuser is an independent ground for <mask> (8 USC § 1227 [a] [2] [B] [ii]). The People assert that defendant’s participation in diversion is tantamount to an admission to being a drug abuser or addict. Therefore, they argue, requiring defendant to plead guilty would merely add an additional ground for deportation. While this argument may be technically correct, it is the court’s understanding that this ground is rarely, if ever, invoked by the Immigration and Naturalization Service. Defense counsel informs the court that a search of the Board of Immigration Appeals cases since 1952 revealed only one case in which the government has prevailed where the sole ground for deportability is that someone is a drug abuser or addict. That case was in 1960, more than a half century ago. The absence of the use of this ground as a basis for deportation proceedings is also consistent with the experience of defense counsel’s colleagues at the Legal Aid Society Immigration Law Unit.


Defendant’s reliance upon Padilla v Kentucky is misplaced. Initially, defendant overstates the Supreme Court’s ruling in Padilla. Having conceded that the use of defendant’s plea allocution at a subsequent prosecution is a collateral consequence, defendant cites Padilla for the proposition “that counsel must warn clients of potential adverse collateral consequences before accepting guilty pleas.” (See defendant’s motion at 6.) However, Padilla makes no such pronouncement. In Padilla, in determining that counsel is constitutionally required to apprise her client of the immigration consequences of a plea (when those consequences are succinct, clear and explicit), the Court relied on the sui generis nature of <mask> — the severity of the penalty and the automatic way it follows from conviction — to show that the collateral versus direct distinction *585was ill-suited to dispose of Padilla’s claim. (See Chaidez, 568 US at —, 133 S Ct at 1112.) Similarly, in People v Peque, the Court of Appeals struggled to find a home for deportation in the direct/collateral divide. In Peque, in determining that a trial court is constitutionally required to apprise non-citizen defendants of the possibility of deportation prior to entering a guilty plea, the Court found that although deportation is “technically on the collateral side of the direct/collateral divide” it fell within a rare case exception to the usual rule that, if collateral, there is no constitutional duty on a trial court to apprise. (See People v Peque, 22 NY3d at 192.) In holding that due process still requires a trial court to warn defendant of the immigration consequences of his or her plea, the Court emphasized the “truly unique nature of deportation as a consequence of a guilty plea” and explicitly stated, “there is nothing else quite like it.” (Id. at 196.) Thus, if there is one thing that Padilla and Peque actually make clear, it is that deportation is a sui generis consequence of a plea, and thus, contrary to defendant’s assertion, neither case has extended categorically an attorney’s or a trial court’s duty to apprise a defendant of all adverse collateral consequences of a guilty plea.


“Now, [defense counsel] stated on the record, and I am required by law to advise every person who pleads guilty to this type of crime . . . that a person who is not a United States citizen and is convicted by plea of this crime will face <mask>, exclusion from the country, or the denial of the right to become a citizen at a future date. Do you understand that?” The defendant replied, “Yes.” The case was adjourned for sentencing.


Our precedents confirm this commonsense application of § 1326(d)(2). We have only held defendants to have been deprived of judicial review under § 1326(d)(2) when there was no judicial review whatsoever of their removal order. See, e.g., Lopez-Chavez, 757 F.3d at 1041 (defendant’s attorney “failed to appeal to the BIA and then petition the Seventh Circuit” for relief from removal order despite “clear basis” for doing so); United States v. Ramos, 623 F.3d 672, 682 (9th Cir. 2010) (defendant’s “waiver of his right to appeal [his] removal order was procedurally defective and deprived him of the opportunity for meaningful judicial review”). This reflects the rationale that “where the defendant has failed to identify any obstacle that prevented him from obtaining judicial review of a <mask> order, he is not entitled to such review as part of a collateral attack under 8 U.S.C. § 1326(d).” Gonzalez-Villalobos, 724 F.3d at 1132 (citations omitted); see also id. at 1133 (“the defendant must show an actual or constructive inability to seek judicial review . . . to satisfy § 1326(d)(2)”).


As noted ante , Hernandez previously filed a petition for writ of habeas corpus which the trial court summarily denied, without an evidentiary hearing. The pending petition for writ of habeas corpus in this court is, therefore, an original proceeding in which we independently review the record. ( In re Scott (2004) 119 Cal.App.4th 871, 877, 884, 15 Cal.Rptr.3d 32.) The instant petition is based on Hernandez's contention she was never advised by trial counsel that her guilty plea would result in mandatory <mask>. The parties agree there is no evidence in the record showing Hernandez was advised her plea would result in mandatory deportation. As our ruling on the petition does not depend on the resolution of any disputed issues of fact in the record, an evidentiary hearing is unwarranted. ( In re Rosenkrantz (2002) 29 Cal.4th 616, 675, 128 Cal.Rptr.2d 104, 59 P.3d 174.)


With respect to meeting the objective standard of reasonableness for immigrant clients, the Supreme Court in Padilla articulated a two-tiered standard. Where the law pertaining to the <mask> consequences of a guilty plea is “truly clear,” the Court explained, the duty of a defense counsel to offer to a noncitizen client “correct advice” as to those consequences is “equally clear.” (Padilla v Kentucky, 559 US at —, 130 S Ct at 1483.) But “[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” (Id.)


As a result of this evidence the Government instituted <mask> proceedings in August of 1964 on the charge that petitioner, at the time of entry, was a sexual deviate. The proceedings were terminated by the special inquiry officer on the ground that a homosexual is not, per se, a constitutional psychopathic inferior. The Board of Immigration Appeals reversed this determination, but approved the order terminating the proceeding on the ground that the Government had failed to prove that petitioner was a sexual deviate at the time of her entry.


“And as to whether or not, you know, he is a man who would never take a deal that might jeopardize his immigration, all I have to do is look at his prior case where the plea said he will be deported in the plea form and that involved a prior strike, which resulted in the defendant going through the <mask> proceedings. So he had prior[ ] knowledge and experience of immigration consequences resulting from a criminal conviction.


rationale, and the most prominent of these programs also received Congress’s implicit approval. In particular, as noted above, the Family Fairness policy, implemented in 1990, authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens granted legal status under IRCA—aliens who would eventually “acquire lawful permanent resident status” and be able to petition on behalf of their family members. Family Fairness Memorandum at 1; see supra p. 57. Later that year, Congress granted the beneficiaries of the Family Fairness program an indefinite stay of <mask>. See Immigration Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978, 5030. Although it did not make that grant of relief effective for nearly a year, Congress clarified that “the delay in effectiveness of this section shall not be construed as reflecting a Congressional belief that the existing family fairness program should be


Abraham Gerges, J. Defendant had pleaded guilty before this court on February 6, *4402007, and the matter is now on for sentence. What had been a simple imposition of sentence based on a negotiated plea has now turned into something far more complex. Under consideration by the court is vacatur of the plea, imposition of the agreed upon sentence, or a reduction of the sentence to time served resulting in immediate <mask>.


I-213 indicating that Jimenez-Sandoval was born on August 6, 1973, making her 20 years old at the time of her entry.1 Presumably because the immigration officers believed she was an adult at the time of her entry, they released her on her own recognizance and served her with an OSC and Notice of Hearing. The served documents included the date, time, and location of her <mask> proceedings. Jimenez-Sandoval failed to appear before the IJ and was ordered deported in absentia.


The plea form includes the statement that Tapia's attorney had explained the consequences of the plea to him and "if not a citizen, my plea may have the consequence of my <mask>, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States." Tapia initialed this statement. Above Tapia's signature at the end of the form, it states he has read each item on the form, discussed it with his attorney, and understands each item; his initials by each item is proof thereof.


The People opposed the motion on the ground that the case against defendant, which included his statement admitting that he had touched the victim, was strong. The prosecutor argued that, under Padilla, a defense attorney must advise his client of <mask> consequences of a guilty plea only when the consequence is succinct, clear and explicit, and can easily be determined. In the case at bar, defendant’s claims were based on his self-serving affidavit, without any supporting evidence. Defendant’s affidavit and his son’s statement contradicted each other, as defendant claimed that his former attorney had given him incorrect advice regarding the consequences of his plea, while his son’s statement alleged that the attorney had never made any representations regarding the consequences of the plea. The prosecutor noted the advisement contained in paragraph 14 of the misdemeanor conviction waiver of rights form signed by defendant. The prosecutor also argued that, even if defendant’s counsel was ineffective for not advising or erroneously advising him regarding the consequences of his plea, defendant was not prejudiced thereby.


Defendant’s plea on May 7, 1985 to the D felony of attempted burglary in the second degree was entered with the understanding the court would recommend against his <mask> at the time of sentence on May 29, 1985. That recommendation was made, but was disregarded by the United *979States Immigration and Naturalization Service because of lack of notice pursuant to 8 USC § 1251 (b) to the United States Attorney General of defendant’s request. Deportation proceedings were commenced in view of defendant’s conviction and his noncitizen status. Prior counsel’s failure to give that statutory notice and afford the Attorney General an opportunity to be heard at the time of sentencing deprived the defendant of a fundamental and constitutional right to effective assistance of counsel with regard to the scope of punishment he faced upon entry of his guilty plea. (Janvier v United States, 793d 449 [2d Cir 1986].)


The People appeal from an order dated August 23, 2005, which granted defendant’s motion, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction, and from so much of an order dated October 25, 2005 which, upon granting the People’s motion for reargument, adhered to the prior decision. Defendant, a native of Pakistan and a lawful permanent resident of the United States, alleged that he entered his guilty plea to sexual abuse in the second degree (Penal Law § 130.60 [2]), a misdemeanor, in reliance upon his trial counsel’s misrepresentations that the United States Government usually does not deport persons convicted of misdemeanors and that because defendant had been granted “asylum,” he would “not have a problem” with immigration authorities. The People do not dispute that the advice allegedly given to defendant was materially inaccurate in that defendant faces mandatory <mask> upon a conviction of an offense involving the sexual abuse of a minor, an “aggravated felony” under federal deportation law, *86even though classified a misdemeanor under New York State law (Immigration and Nationality Act § 101 [a] [43] [A] [8 USC § 1101 (a) (43) (A)]; § 237 [a] [2] [A] [iii] [8 USC § 1227 (a) (2) (A) (iii)]; United States v Couto, 311d 179, 184 [2d Cir 2002]; Zhang v United States, 401 F Supp 2d 233, 241-242 [ED NY 2005]; see People v McKenzie, 4 AD3d 437, 439 [2004]). Defendant alleges that he would not have pleaded guilty to a deport-able offense absent such misinformation, thereby asserting a legal basis for the relief (CPL 440.30 [4] [a]; People v Van Deusen, 7 NY3d 744 [2006]; People v McDonald, 1 NY3d 109 [2003]; People v Bao Lin Xue, 30 AD3d 166 [2006]), in that trial counsel’s advice expressed so “inappropriate [a] level of expectation” regarding the likelihood of deportation (People v Gatien, 17 AD3d 101, 102 [2005]) as to fall below an objective standard of meaningful representation (People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]), and established “a prima facie showing of prejudice” (People v McDonald, 1 NY3d at 115).


The law by its nature invites comparisons. Defendant offers comparison with his codefendant asking the court to redress what he considers the apparent anomaly of his incarceration. Aside from comparing his fate with that of codefendant Andujar, he states that but for the firearm found on his person, which categorized him as a violent felony offender, he would *951currently be eligible for <mask>. Defendant claims his punishment compared to the release of his equally culpable co-defendant heightens his contention that his sentence was grossly disproportionate and consequently cruel and unusual.


To vacate a forfeiture and exonerate bail successfully under section 1305, subdivision (d) based on a defendant's <mask>, the surety has the burden of showing: "(1) a deportation, (2) the period of time the bailee is deemed inadmissible under federal law, and (3) that the period of inadmissibility would render prosecution improbable based on the totality of the circumstances, including the statute of limitations." ( Financial Casualty , supra , 236 Cal.App.4th at p. 47, 186 Cal.Rptr.3d 131.)


Smith was premised, inter alia, on the Court’s holding that Catu errors were federal constitutional violations, triggering the requirement of CPL 400.15 (7) (b) that convictions obtained in violation of the United States Constitution cannot be used as predicate felony convictions to enhance a defendant’s sen*263tence.6 Catu held that defendants must be advised of PRS consequences because they are a direct rather than a collateral result of a guilty plea. That holding relied upon the Court’s earlier decision which asserted the same principle with respect to immigration consequences, People v Ford (86 NY2d 397 [1995]). Ford held that <mask> consequences were a collateral rather than direct consequence of a guilty plea. But, as relevant here, Ford based that conclusion on a range of federal and state authorities grounded in both state law and the Federal Constitution. (86 NY2d at 402-403.) Catu itself then, in this court’s view, did not directly answer the question of whether the decision vindicated a federal constitutional right.


This case is distinguishable from those in which a defendant was not prejudiced by an attorney’s failure to request a JRAD, where a defendant would not have been eligible for the relief in *513any event, or where the court would not have promised to make the recommendation if counsel had raised it with the court. (Cf., People v Ahmetovic, 157 AD2d 489 [1st Dept], lv denied 75 NY2d 963 [1990].) Ahmetovic specifically pointed out that no showing had been made in that case that the defendant would not have pleaded guilty if her counsel had advised her of the <mask> consequences of her plea. In the current matter, just the opposite is true. It is indisputable that Mr. Cheung pleaded guilty only after being expressly promised that he would not be deported. Thus, while it is correct that the failure to request a JRAD, in and of itself, does not constitute ineffective assistance of counsel (People v Cuello, 188 AD2d 428 [1st Dept 1992], lv denied 81 NY2d 969 [1993]), much more than a failure to request a JRAD is at issue in this case. Here, an express promise was made to this defendant, that the court would make a JRAD: the functional equivalent of a promise that the defendant would not be deported, a power that the State court still had in 1983. Defense counsel failed to take the necessary steps to see to it that promise was fulfilled. In such a situation, effective assistance has not been provided. (See, e.g., United States v Corona-Maldonado, 46 F Supp 2d 1171 [D Kan 1999] [guilty plea set aside due to ineffective assistance of counsel where defendant chose to plead guilty only after being incorrectly informed by his attorney that he would not be deported as a consequence of his plea].)


The defendant was paroled on February 14, 1966. Thereafter a <mask> proceeding was instituted against him by the Immigration and Naturalization Service for the New York District pursuant to section 242 of the Immigration and Nationality Act (U. S. Code, tit. 8, § 1252) Avhich culminated in a finding that the defendant was a deportable alien under section 241 of said act (U. S. Code, tit. 8, § 1251, subd. [a], par. [4]), and an order of deportation was duly entered against him.


In response to defendant’s argument that he could not legally be employed, plaintiff maintains that regardless of the legality of employment, any immigration reference would prejudice the jury because of the present national controversy about undocumented aliens employed here.6 Further, plaintiff says allegations of immediate <mask> are untrue. He states that his evidence (including expert testimony) will show that he is legally present in this country. The federal government has instituted no administrative or criminal proceedings against Maliqi, and plaintiff maintains he voluntarily revealed his presence to the Department of Homeland Security with his asylum application. According to plaintiff, he is entitled to asylum under both international and domestic law (see generally Immigration and Nationality Act of 1952 § 252 [codified at 8 USC § 1282]; Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra n 5). Because his appeal remains pending, plaintiff says he retains the right to remain in the United States during reconsideration of his BIA case and no negative inference arises from that fact (see generally Yeung v Immigration & Naturalization Serv., 76d 337 [11th Cir 1995]).


*582Ostensibly, the instant matter and Bautista appear similar. In fact, the same expert witness who testified in Bautista (Mehr) also testified in the evidentiary hearing below. However, a critical difference between Mehr's testimony in Bautista and the instant matter involves his testimony about the availability to plead up to a greater offense to avoid negative immigration consequences. In Bautista , Mehr testified about five occasions in which he was involved where the district attorney allowed a defendant to plead guilty to a greater offense to avoid <mask>. ( Bautista , supra , 115 Cal.App.4th at p. 240, 8 Cal.Rptr.3d 862.) Further, the court's analysis in that case focused on the premise that there was a reasonable probability the prosecutor and trial court would have been amenable to allowing the defendant to plead up to a nonaggravated felony and avoid deportation. ( Id. at pp. 240-242, 8 Cal.Rptr.3d 862.) Here, there was no such evidence before the trial court. Mehr did discuss greater offenses to which Novoa could have pled guilty, but he provided no evidence that the prosecutor would have accepted those pleas to allow Novoa to avoid deportation. Indeed, Mehr admitted that he had never handled a case in San Bernardino County and was not familiar with the courthouse in Fontana. Moreover, there is no suggestion in Bautista that trial counsel had a pre- Padilla duty to research and explain immigration consequences to their clients. Finally, as the opinion in Bautista was issued after Novoa *270entered his guilty plea, O'Connor could not have referred to that case for guidance on his obligation to discuss the immigration consequences of the guilty plea with Novoa.


The motion is bitterly opposed by Dr. Roe. He spared no expense in engaging eminent counsel who represent him very well indeed. I was so impressed with his attorney’s oral presentation on the return day of the motion that I indicated from the Bench that I was inclined to go along with his argument that the representatives of the Austrian Consulate General had no standing in court in the first place, and that payments for the care and maintenance of the incompetent could be enforced only while she was institutionalized in New York State; that the obligation to make such payments ceased upon her <mask> to a foreign country.


Chen says in considering the plea she "made clear to her lawyer that she was primarily concerned about being away from her family and having to spend time in jail." Chen says this is the way she "placed particular emphasis on the immigration consequences of the plea ...." We are not persuaded. On its face, the statement simply shows that Chen did not want to be away from her parents while she was serving time in jail or prison. It does not suggest her concern was about <mask>. Moreover, this statement is taken from Chen's 2017 declaration in support of her Penal Code section 1473.7 motion. It is not evidence of events occurring at the time of her 2012 plea agreement. Chen's assertions that she would not have accepted the plea had she been properly advised, without more, are legally insufficient to demonstrate prejudice.


3. <mask> proceedings were commenced prior to the accident and plaintiff was ordered deported in April, 1958. Plaintiff claims that he attempted to remain in the United States by legal proceedings to stay the order of deportation and by Congressional act. No act of Congress was passed permitting plaintiff to remain in this country. Plaintiff sought to reopen deportation proceedings in order to obtain suspension of deportation in November, 1964. This application was denied by order of the District Court of the United States for the Southern District of New York, and a final order of deportation is currently outstanding against plaintiff.