06-15-11 STATE OF NEW JERSEY VS. ARTHUR TELFORD A-0286-10T2
In this appeal, the court considered whether defendant was deprived of the effective assistance of counsel because -- prior to his guilty plea to third-degree child endangerment in 2004 -- his attorney only advised he "might" rather than "would" be deported. In affirming, the court held that the deportation consequences at the time did not require more specific advice because the situation was too complex, observing: (1) the split in the federal circuits regarding the scope of "sexual abuse of a minor," 8 U.S.C.A. § 1101(a)(43)(A), as a type of "aggravated felony," 8 U.S.C.A. § 1227(a)(2)(A)(iii), which presumptively mandates deportation; (2) unsettled questions surrounding the type of analysis that would be undertaken by the tribunals charged with determining whether a noncitizen has committed an "aggravated felony"; and (3) the growing tendency in those courts to give little weight to the rule of construction adopted in Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S. Ct. 374, 376, 92 L. Ed. 433, 436 (1948), which resolves statutory ambiguities in favor of noncitizens facing deportation. These questions were unsettled when defendant pled guilty and, indeed, are largely unsettled now. As a result, counsel here could do no more than he did, which was to advise defendant of the likelihood rather than the certainty of deportation.