                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5695-13T4

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                 February 26, 2016

v.                                         APPELLATE DIVISION

HORACE BLAKE,

     Defendant-Appellant.
__________________________________

          Submitted October 15, 2015 – Decided February 26, 2016

          Before Judges Alvarez, Ostrer and Haas.

          On appeal from the Superior Court of New
          Jersey, Law Division, Middlesex County,
          Indictment No. 11-12-1890.

          Joseph E. Krakora, Public Defender, attorney
          for appellant (Monique Moyse, Designated
          Counsel, on the briefs).

          Andrew    C.    Carey,   Middlesex   County
          Prosecutor, attorney for respondent (Nancy
          A. Hulett, Assistant Prosecutor, of counsel
          and on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.

     Defendant Horace Blake appeals from the trial court's April

3, 2014, order denying his petition for post-conviction relief

(PCR)   without    an   evidentiary   hearing.       He   collaterally

challenges his conviction, after a guilty plea, of third-degree
possession       of    marijuana    with    intent      to     distribute,     N.J.S.A.

2C:35-5(b)(11), and third-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a).               Defendant contends that his trial

counsel was ineffective because he failed to adequately advise

him   of   the        immigration   consequences         of    his    plea.        Having

considered       defendant's     arguments       in   light     of    the   record     and

applicable principles of law, we affirm.

                                           I.

      We discern the following facts from the record.                           On July

26, 2011, defendant was stopped on the New Jersey Turnpike.                             He

admitted    to    the     officer   that    he    was   under     the      influence    of

marijuana, and was transporting five pounds of marijuana for the

purpose of distribution.                 Defendant also had a five-year-old

child in the car who was not restrained in a safety seat.

      A    Middlesex       County    Grand       Jury      indicted     defendant      on

December 20, 2011, charging him with second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a) (count one); second-

degree     possession       of   marijuana       with      intent     to    distribute,

N.J.S.A.    2C:35-5(a)(1)          and    N.J.S.A.      2C:35-5(b)(10)(b)          (count

two);     and    fourth-degree       possession       of      marijuana     over    fifty

grams, N.J.S.A. 2C:35-5(a)(3) (count three).

      Defendant remained incarcerated in lieu of bail until his

plea hearing on June 29, 2012.                    Defendant pleaded guilty to




                                            2                                   A-5695-13T4
third-degree    endangering             the   welfare        of   a    child,    and    third-

degree possession of marijuana with intent to distribute.                                 Count

three of the indictment and various motor vehicle offenses were

subsequently     dismissed.                The       plea   agreement      called       for     a

sentence of probation, conditioned upon 364 days in jail, and

immediate sentencing.              The court sentenced defendant in accord

with the plea agreement, deeming the 340 days that defendant had

already spent in custody fulfilled the custodial portion of his

sentence.

     At   the   combined       plea        and       sentencing       hearing,    there       was

extensive     discussion           of      the        immigration       consequences          of

defendant's plea.         Defendant was made aware that he would be

taken into custody by federal immigration officials immediately

upon being sentenced.              The section of the plea form describing

promises made to defendant by the prosecutor, his attorney, or

anyone else, stated that defendant was "to be released to ICE

[Immigration and Customs Enforcement] custody forthwith."

     In     response     to        question          seventeen    of     the     plea     form,

defendant     admitted        he     was      not      a    citizen     and     acknowledged

immigration consequences of his plea.1                       The form stated:


1
  Defendant utilized the August 1, 2011, revision of the plea
form. See Administrative Directive #05-11 "Criminal Plea Form –
Question Regarding the Immigration Consequences of a Guilty
Plea"   (August  1,  2011),   https://www.judiciary.state.nj.us/
                                                     (continued)


                                                 3                                     A-5695-13T4
         17.   a.   Are you a citizen of the United
                    States?

                    If you have answered "No" to this
                    question,    you     must    answer
                    Questions 17b – 17f.    If you have
                    answered "Yes" to this question,
                    proceed to Question 18[.]

               b.   Do you understand that if you are
                    not   a  citizen   of   the   United
                    States,   this   guilty   plea   may
                    result in your removal from the
                    United States and/or stop you from
                    being able to legally enter or re-
                    enter the United States?

               c.   Do you understand that you have
                    the right to seek individualized
                    advice from an attorney about the
                    effect your guilty plea will have
                    on your immigration status?

               d.   Have   you   discussed    with  an
                    attorney the potential immigration
                    consequences of your plea? If the
                    answer   is   "No,"    proceed  to
                    question 17e.    If the answer is
                    "Yes," proceed to question 17f.

               e.   Would you like the opportunity to
                    do so?

               f.   Having   been   advised    of   the
                    possible immigration consequences
                    and   of   your   right   to   seek
                    individualized   legal  advice   on
                    your immigration consequences, do
                    you still wish to plead guilty?


(continued)
directive/2011/dir_05-11.pdf.   See also Report on Revisions to
the Plea Form to Address Immigration Consequences of a Guilty
Plea, Exhibit A to Report of the Supreme Court Committee on
Criminal Practice (Feb. 15, 2011).



                                4                          A-5695-13T4
       Defendant answered "No" to 17a, "Yes" to 17b, 17c, 17d and

17f, and did not respond to 17e.                    The judge orally recited these

questions,      and     elicited     the       same      responses   from      defendant,

except that he also responded in the negative to 17e.

       During     the     colloquy        between        the   court     and     counsel,

defendant acknowledged that the drug conviction was a deportable

offense;     he    faced      the       "risk       of     deportation";       ICE      would

immediately take him into custody; and, he would be given the

opportunity       to    resist     removal.          The    following    exchange        took

place between defendant and his counsel:

             Q:   Mr. Blake, . . . your decision [to]
             accept[] the plea is ultimately based upon
             the advice you received, the possession with
             intent   to  deliver   is  a   third[-]degree
             offense, [and] is in fact considered a
             deportable offense, you understand that?

             A:        Yes, sir.

             Q:   It is also very likely although not
             quite as certain that the third[-]degree
             endangering is also a deportable offense,
             you understand that?

             A:        Yes, sir.

       Defense     counsel       then     reviewed         defendant's     decision         to

forego   a   suppression         motion,        challenging      the     traffic        stop.

Counsel confirmed defendant's understanding that if the motion

were   successful,        "the     risk   of       immigration   consequences           would

disappear," but if unsuccessful, "not only would the risk of




                                               5                                     A-5695-13T4
deportation remain but [defendant] would be facing State Prison

. . . ."         Counsel    then       continued,           confirming     defendant's

understanding the deportation was "likely":

            Q:   Now, as the judge was talking to                        you
            the   decision  you're  making   today                        is
            ultimately to terminate your custody                          in
            Middlesex County, to go to immigration                       and
            to deal with either deportation which                         is
            likely or any other opportunities that                       you
            might have, is that what you're making                       the
            decision to do?

            A:     Yes, sir.

       In discussing defendant's request for immediate sentencing,

the judge stated, "And your attorney wants me to release you at

the time of sentencing today so you can go straight into ICE

custody and start that process so you could fight to stay in

this country?"         Defendant responded, "Yes, sir."                   On the other

hand, in discussing defendant's license suspension, the court

stated, "[I]t's not like you're going to be released back into

the    community   right       away,   do       you    understand       that?"      After

sentencing,      the   judge    added,      "If       you   stay   in   this     country,

you're on probation. . . .              If you get released back into the

community you need to report to probation here in New Jersey,

come see me.       If ICE lets you go you post bail, you come see

me."

       In a direct appeal before the excessive sentencing calendar

on March 6, 2013, appellate counsel argued defendant should be



                                            6                                    A-5695-13T4
afforded "the opportunity . . . to revisit this plea based on

the fact that [defendant] didn't know all the consequences" of

his plea.      The State responded that the plea hearing record

demonstrated       that     defendant       understood     the      immigration

consequences    of    his   plea.       The    court    affirmed    defendant's

sentence and conviction.         State v. Blake, No. A-1679-12 (App.

Div. Mar. 6, 2013).

      Defendant's pro se PCR petition followed in April 2013.                   In

his   supporting     certification,      defendant      alleged    he   received

ineffective    assistance       of      counsel    in     various       respects.

Regarding his immigration status, he alleged his attorney was

ineffective by failing to seek a judicial recommendation against

deportation    (JRAD),      although     the    Immigration       Act   of   1990

repealed the provision permitting JRADs.                See State v. Gaitan,

209 N.J. 339, 359-60 (2012), cert. denied, __ U.S. __, 133 S.

Ct. 1454, 185 L. Ed. 2d 361 (2013).            Defendant also asserted his

attorney pressured him to plead guilty, insinuating counsel did

so because he was unprepared.           Defendant asserted counsel missed

four court dates; failed to challenge the State's version of

facts; and failed to file motions on his behalf.

      In the context of his claim that counsel pressured him,

defendant referenced the likelihood of his deportation, which we

quote without correcting grammatical and spelling errors:




                                        7                                A-5695-13T4
          [Counsel] had [a] plea bargain agreement in
          his hand.     Telling me to sign, go to
          immigration get Deported back to Jamaica.
          There are many ways to get back to the
          United States.    Even though I told him I
          wasn't selling the Marijuana, I made a
          regrettable mistake of possession and would
          could of prove it in the Court of Law.

    He reiterated that he "had no way of knowing that this

lawyer had inadequately inform him that he should plea guilty,

be deported to Jamaica and fine a way to get back there are many

ways.   I was confuse, mystified and astonish by my lawyer."

    In a supplemental certification prepared after PCR counsel

was appointed, defendant asserted he was unaware that the drug

offense to which he pleaded guilty was an "aggravated felony,"

which would result in "mandatory deportation"; he alleged he

believed deportation was only a possibility.

          2.   Although I told my attorney, prior to
          the plea, that I was not a U.S. Citizen, I
          was never told that the crime that I was
          pleading   guilty   to  was   considered an
          aggravated felony under federal immigration
          law. I was never told that a guilty plea to
          this drug offense would result in my
          mandatory deportation.     Had I been told
          this, I never would have entered the plea,
          but rather I would have gone to trial.

          3.   When I appeared before [the] Judge
          . . . I was never told that deportation was
          mandatory.    I was told that this was
          something that may happen to me and that it
          was a possibility. I was told by the Court
          that   they   were   not   responsible  for
          immigration, but were going to give me




                                8                         A-5695-13T4
           probation so that I could fight to stay in
           the country.

           4.   I have now learned that deportation for
           a guilty to distribution of a controlled
           dangerous    substance    means   that    my
           deportation is mandatory.

           [5.] During my conversation with the Court
           and with trial counsel I was told that my
           sentence would be three years of probation
           with time served in the county jail as a
           condition of that probation. Based on these
           statements, I believed that I could oppose
           my deportation. However, I now realize this
           is untrue.

    The court heard oral argument on defendant's petition in

April   2014.     Defendant's    PCR       counsel   argued     that   defendant

"should have been told, under no uncertain terms, that [his]

deportation     was   an   absolute   certainty";      and    trial    counsel's

failure to advise him that deportation was mandatory constituted

ineffective assistance of counsel.

    The      court     denied    defendant's         petition     without       an

evidentiary hearing.         The PCR judge found that defendant had

been properly advised of the potential immigration consequences

of his plea in accordance with Padilla v. Kentucky, 559 U.S.

356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).                  Consequently,

defendant failed to make a prima facie showing of ineffective

assistance of counsel under Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).                         The judge

explained:



                                       9                                 A-5695-13T4
           [D]uring the plea . . . colloquy I read to
           him all of Question 17 of the plea form. He
           responded    that    he    was   aware    of
           the possibility   of   .  .    . immigration
           consequences, and that even though he would
           be given the opportunity to speak with an
           independent immigration attorney he chose
           not to do so . . . .

                So, the colloquy in the transcripts
           show that I go over all the questions in the
           plea form, trial counsel then supplements
           the record and talks to the defendant
           relative to the third[-]degree possession
           charge, and that it was a deportable
           offense. Trial counsel also explains to the
           defendant     that      the   third[-]degree
           endangering was very likely a deportable
           offense, but wasn't certain.    But this is
           not Padilla nor [State v. Nunez-Valdez, 200
           N.J. 129 (2009)] where the defendant was
           actually told that his guilty plea would
           have no immigration consequences, or told
           that his deportation was only a possibility.
           He was unequivocally informed that the
           third[-]degree     possession  charge    was
           deportable.

               . . . .

                [B]ased on the submissions of the
           parties my analysis of the applicable case
           law,   the   guilty   plea,   the  sentencing
           transcripts,   I    can't   find  ineffective
           assistance of counsel as articulated in
           Strickland v. Washington.

    This   appeal   followed.   Defendant   presents   the   following

argument for our review:

           [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY
           HEARING ON HIS CLAIM THAT TRIAL COUNSEL
           RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
           BY FAILING TO INFORM HIM OF THE MANDATORY
           DEPORTATION CONSEQUENCES OF HIS PLEA.



                                10                            A-5695-13T4
                                       II.

      We defer to trial court's factual findings made after an

evidentiary hearing on a petition for PCR.                State v. Nash, 212

N.J. 518, 540 (2013).            However, where, as here, no evidentiary

hearing was conducted, we may review the factual inferences the

court has drawn from the documentary record de novo.                    State v.

Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162             L. Ed. 2d 898 (2005); State v.

O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014).                    We also

review de novo the court's conclusions of law.                   Harris, supra,

181 N.J. at 420.        Thus, it is within this court's authority "to

conduct a de novo review of both the factual findings and legal

conclusions of the PCR court."          Id. at 421.

      We    recognize        that     for      a     non-citizen       defendant,

"[p]reserving the . . . right to remain in the United States may

be   more   important    .   .   .   than    any   potential    jail   sentence."

Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed.

2d at 295 (quoting INS v. St. Cyr, 533 U.S. 289, 322, 121 S. Ct.

2271, 2271, 150 L. Ed. 2d 347, 347 (2001)).                    Defendant entered

his plea on June 29, 2012.            Therefore, his counsel was obliged

to comply with the standard of practice established in Padilla,

which was given prospective effect.                Chaidez v. United States,




                                        11                               A-5695-13T4
___ U.S. ___, ___, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149, 155

(2013); Gaitan, supra, 209 N.J. at 372-73.

       To provide effective assistance of counsel, post-Padilla, a

defense attorney is required to address, in some manner, the

risk of immigration consequences of a non-citizen defendant's

guilty plea.            Padilla, supra, 559 U.S. at 367, 130 S. Ct. at

1482,       176    L.    Ed.   2d    at    294     ("The       weight       of   prevailing

professional norms supports the view that counsel must advise

her client regarding the risk of deportation.").                                    The Court

recognized        that     immigration      law     is       often       complex,     and   the

consequences of a conviction are often far from clear.                                 Id. at

369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96.                                   Thus, the

specificity and definiteness of counsel's required advice varies

with the clarity of the immigration law itself.                             Ibid.; Gaitan,

supra, 209 N.J. at 380 ("[A]ttorneys now have specific duties as

to how they must advise pleading noncitizen criminal defendants,

depending on the certainty of immigration consequences flowing

from the plea.").

       In    the    "numerous       situations          in    which       the    deportation

consequences of a particular plea are unclear . . . 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."                Padilla, supra, 559 U.S. at 369, 130




                                             12                                       A-5695-13T4
S. Ct. 1483, 176 L. Ed. 2d at 296.              However, where the "terms of

the   relevant      immigration      statute     are   succinct,        clear     and

explicit in defining the removal consequence," then an attorney

is obliged to be "equally clear."               Id. at 368-69, 130 S. Ct. at

1483, 176 L. Ed. 2d at 295-96.

      In   Padilla,     the    defendant,   a    lawful     permanent      resident,

pleaded guilty to transporting a large quantity of marijuana.

Id. at 359, 130 S. Ct. at 1477-78, 176 L. Ed. 2d at 289-90.                       The

Court held that the immigration consequences of a drug offense

described in 8 U.S.C.A. § 1227(a)(2)(B)(i)2 "commands removal."

Id. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.                      In other

words, deportation is "presumptively mandatory."                   Ibid.    Because

the deportation consequence was "truly clear," the attorney was

obliged to give advice that was equally clear.                    Id. at 369, 130

S. Ct. at 1483, 176 L. Ed. 2d at 296.

      Our State Supreme Court has interpreted Padilla to require

an attorney "to point out to a noncitizen client that he or she

is pleading to a mandatorily removable offense . . . ."                     Gaitan,

supra,     209   N.J.   at    380.   The    failure    to    do   so   constitutes


2
  "Any alien who at any time after admission has been convicted
of a violation of (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States, or a foreign
country relating to a controlled substance . . . other than a
single offense involving possession for one's own use of 30
grams or less of marijuana, is deportable."



                                       13                                   A-5695-13T4
"deficient performance of counsel."                Ibid.        However, "even if

removal is not 'mandated' in the sense that a state offense is

not    identified    on     published     lists    of     offenses      equating    to

aggravated    felonies      or    like    mandatorily      removable        offenses,

counsel must highlight for noncitizen clients that entering a

guilty plea will place them at risk of removal . . . ."                       Id. at

381.      Counsel    must    also     advise    clients    to    seek     immigration

counseling.      Ibid.

       Defendant argues that his counsel was not specific enough

in describing the potential for removal after his convictions.

Defendant alleges in his second certification that counsel never

told him that he pleaded to an aggravated felony under federal

immigration law; and that "a guilty plea to this drug offense

would result in . . . mandatory deportation."                        He argues his

counsel    was     required      to   inform     him    that    "deportation       was

presumptively       mandatory."          Had    counsel    done     so,     defendant

asserts he would have gone to trial, rather than plead guilty.

       Counsel    also    highlights     the    trial    judge's     references     to

defendant's intention to "fight to stay in this country" and his

statement that if ICE released defendant, he needed to report to

probation.       Defendant also refers to the wording of question 17,

which   states     that   the    plea    "may   result     in   .   .   .   removal."

Pointing to statements made at the plea hearing, and in the plea




                                          14                                 A-5695-13T4
form,   he    argues      he   was   misled    to    believe      he    might   not    be

deported.

     We are unconvinced that defendant has presented a prima

facie     case     of    ineffective     assistance        of    counsel.        First,

defendant places undue weight on the statements of the trial

judge to establish that his plea counsel provided ineffective

assistance.         The    judge's     statements     may       not    be   imputed    to

counsel.         The judge is obliged to ascertain that a plea is

entered    voluntarily,        without   threats      or    promises        outside   the

record, "with an understanding of the nature of the charge and

the consequences of the plea."                 R. 3:9-2.        That obligation is

related      to,   but    distinct     from    the   attorney's        obligation      to

render effective assistance.             Cf. State v. Jamgochian, 363 N.J.

Super. 220, 227 (App. Div. 2003) (stating trial judge is not

obliged to disclose "all the details" to assure defendant is

aware he would be subject to community supervision for life as a

consequence of his plea, "but the court should at least assure

itself that defense counsel has discussed the matter with his

client and defendant understands . . . .").

     The judge in this case adhered to the plea form adopted by

our Court.3        While the form states that a plea "may result in


3
  Shortly after Nunez-Valdez, supra, 200 N.J. 129, was decided,
the plea form reflected an attempt to distinguish between
                                                    (continued)


                                          15                                    A-5695-13T4
. . . removal," the form accounts for those cases where removal

is virtually inevitable by informing a defendant that he may

seek    "individualized   advice    from    an   attorney"       about    the

immigration   consequences   of    his   plea,   and   further    inquiring

about whether defendant has in fact received such individualized

advice.4

       Second, focusing on defendant's claims with respect to his

counsel's obligations, defendant has not presented a prima facie

case that his attorney failed to comply with the standard set in

Padilla, as interpreted in Gaitan.         Defendant pleaded guilty to

a drug offense, which presented the same clear consequences as

those presented in Padilla.        In his initial pro se petition,



(continued)
convictions that may, and convictions that will, subject a
defendant to removal.   The form asked, "Do you understand that
if you are not a United States citizen or national, you may be
deported by virtue of your plea of guilty?" and "Do you
understand that if your plea of guilty is to a crime considered
an 'aggravated felony' under federal law you will be subject to
deportation/removal?"    See Administrative Directive #08-09,
"Criminal Plea Forms – Amendments to Two Forms" (Sept. 4, 2009),
http://www.judiciary.state.nj.us/directive/2009/dir_08-09.pdf.
The Court subsequently revised the form, and adopted the version
utilized in defendant's plea.
4
  We do not address here whether, and to what extent, a judge is
obliged to engage in a colloquy beyond that dictated in the plea
form. The issue is not directly raised by a petition based on
counsel's alleged ineffectiveness.     Also, although defendant
contends he was misled by the judge's reference to fighting
removal, defendant acknowledges that he did "fight" for a stay
of his deportation, and succeeded in some measure.



                                   16                               A-5695-13T4
defendant acknowledged that his attorney told him to "go to

Immigration[,] get [d]eported back to Jamaica," and then explore

the "many ways to get back to the United States."                          (Emphasis

added).     These       statements    belie      the   assertions       made   in    his

supplemental certification that his attorney never told him he

was   subject     to    "mandatory    deportation,"        or    that   removal      was

"presumptively mandatory," regardless of whether those precise

words   were    used.5      Whether    or      not   defense     counsel   described

defendant's crime as an "aggravated felony,"6 it is clear, based

on defendant's admissions in his initial petition, that counsel

deemed defendant's deportation inevitable and unavoidable and

advised defendant accordingly.              Furthermore, the plea form and

plea colloquy left no doubt that defendant would be taken into

the     custody        of   immigration        officials        immediately       after

sentencing.

5
  We do not address defendant's potential for re-entry, as he has
not raised the issue.
6
  Under 8 U.S.C.A. § 1227(a)(2)(A)(iii), a non-citizen "is
deportable" if he commits an "aggravated felony."    "Aggravated
felony" is defined to include numerous categories of offenses, 8
U.S.C.A. § 1101(a)(43), which sometimes makes it difficult to
determine whether a State-defined crime falls within the
federally-defined category.    However, as noted in Padilla,
little uncertainty surrounds the determination whether a
defendant is deportable if he has committed a drug offense,
because federal law separately provides that a non-citizen "is
deportable" if convicted of a controlled substance offense other
than a single offense involving personal possession of thirty
grams or less of marijuana. 8 U.S.C.A. § 1227(a)(2)(B)(i).



                                          17                                   A-5695-13T4
    We     therefore         view    defendant's      allegation            in    his    second

certification that he was unaware he was eligible for "mandatory

deportation"      to    be    a     "bare    assertion      .    .   .     insufficient        to

support    a    prima    facie       case     of   ineffectiveness."                State      v.

Cummings, 321 N.J. Super. 154, 171 (App. Div.), certif. denied,

162 N.J. 199 (1999).              Defendant may not create a genuine issue

of fact, warranting an evidentiary hearing, by contradicting his

prior     statements         without        explanation.             Cf.     Shelcusky         v.

Garjulio,      172    N.J.    185,     201-02      (2002)       (discussing        the     "sham

affidavit" doctrine).

    Third,       we    reject       defendant's      suggestion            that    a    defense

attorney must use "magic words" — "mandatory deportation" or

"presumptively          mandatory       deportation"             —    to        fulfill       his

obligation      to    provide       effective      assistance         to    a     non-citizen

client.     The Court in Padilla used various turns of phrase to

convey that once federal officials commence removal proceedings

against a non-citizen convicted of a deportable offense, the

prospects for defeating removal under the immigration statutes

are slim:

               The "drastic measure" of deportation or
               removal . . . is now virtually inevitable
               for a vast number of noncitizens convicted
               of crimes.

                      . . . .




                                              18                                        A-5695-13T4
         Under contemporary law, if a noncitizen
    has committed a removable offense after the
    1996 effective date of these amendments, his
    removal is practically inevitable but for
    the possible exercise of limited remnants of
    equitable discretion vested in the Attorney
    General to cancel removal for noncitizens
    convicted of particular classes of offenses.

         . . . .

         And, importantly, recent changes in our
    immigration law have made removal nearly an
    automatic result for a broad class of
    noncitizen offenders.

         . . . .

         Padilla's counsel could have easily
    determined that his plea would make him
    eligible for deportation simply from reading
    the text of the statute, which addresses not
    some broad classification of crimes but
    specifically   commands   removal   for  all
    controlled substances convictions except for
    the most trivial of marijuana possession
    offenses . . . .        The consequences of
    Padilla's plea could easily be determined
    from   reading  the   removal  statute,  his
    deportation was presumptively mandatory and
    his counsel's advice was incorrect.

         . . . .

         To satisfy this responsibility, we now
    hold that counsel must inform her client
    whether   his  plea  carries   a   risk  of
    deportation.

    [Padilla, supra, 559 U.S. at 360-74, 130 S.
    Ct. at 1478-86, 176 L. Ed. 2d at 290-99
    (emphasis added).]

Our Court held in Gaitan that, post-Padilla,




                          19                       A-5695-13T4
            [C]ounsel's failure to point out to a
            noncitizen client that he or she is pleading
            to a mandatorily removable offense will be
            viewed as deficient performance of counsel;
            affirmative advice must be conveyed as part
            of the counseling provided when a client
            enters a guilty plea to a state offense that
            equates to an aggravated felony, triggering
            eligibility for mandated removal.

            [Gaitan, supra, 209 N.J. at 380 (emphasis
            added).]

       None of these formulations impose a duty to advise a client

that removal is a certainty, even if the client's offense makes

him    clearly    "deportable"        under    federal          law   for       committing      a

controlled         substance          offense         under           8      U.S.C.A.           §

1227(a)(2)(B)(i).

       Although     there   are       precious    few      grounds         to    contest      or

secure    relief    from    a   conviction       of    a    crime         that    is   clearly

deportable, such as many CDS offenses, the likelihood of actual

removal also depends on the enforcement discretion of federal

immigration officials.            See State v. Brewster, 429 N.J. Super.

387, 396 (App. Div. 2013) (noting that the defendant, convicted

of a mandatorily removable CDS offense, "remained undisturbed by

federal immigration officials for almost twelve years" after his

1998     conviction).           The    Department          of    Homeland         Security's

enforcement priorities have also evolved over the years.                                     See,

e.g.,    Dep't     of   Homeland      Sec.,     Memorandum,           Policies         for   the

Apprehension, Detention and Removal of Undocumented Immigrants



                                          20                                           A-5695-13T4
(Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publica-

tions/14_1120_memo_prosecutorial_discretion.pdf                         (prioritizing

removal   of,    among    others,    persons       convicted       of     felonies      and

aggravated felonies "unless they qualify for asylum or another

form of legal relief," or, "there are compelling and exceptional

factors   that    clearly       indicate    the    alien    is    not     a    threat    to

national security, border security, or public safety and should

not therefore be an enforcement priority.").

      We recognize that an attorney may fail to provide effective

assistance   if    he    or   she   minimizes      the     risk    of     removal,      and

thereby misleads a client.7            On the one hand, an attorney must

advise a client convicted of clearly deportable offenses, such

as CDS offenses, that if enforcement is commenced, the client

faces   virtually       inevitable    removal,       although       the       manner     of

conveying that fact is as variable as the English language.                              On

the other hand, where the law is "highly complex and not capable

of being reduced to any clear, succinct, or certain answer," an

attorney may fulfill his duty by conveying to his client that

the immigration consequences of his plea are uncertain.                              State

v.   Telford,     420    N.J.    Super.     465,    468-70        (App.       Div.   2011)




7
   Likewise, under certain circumstances, an attorney may
exaggerate the risks of removal to the detriment of a client who
would forego an otherwise attractive plea offer.



                                           21                                    A-5695-13T4
(applying     Padilla   standard),       certif.    denied,    209    N.J.    595

(2012).

    A court must review an attorney's advice in its totality to

determine   whether     he   has    fulfilled     his   duty   to    convey   the

immigration    consequences    of    a    plea,    taking   into    account   the

clarity, or lack thereof, of the immigration law itself.                 Taking

one statement or phrase in isolation can provide a distorted

picture of an attorney's advice.8             Under the circumstances of

this case, particularly in light of defendant's admissions in

his initial certification, we find no basis to conclude that

defense counsel depreciated defendant's risk of removal, misled




8
  Other courts have grappled with the issue of what language is
sufficient to fulfill an attorney's obligation where the offense
is clearly deportable.   See, e.g., Popoca-Garcia v. State, 334
P.3d 824, 826 n.1, 824-28 (Idaho 2014) (highlighting divergent
views of various state courts regarding the acceptability of
such terms as "likelihood," "possibility," "very likely," and
"eligible for deportation" to describe the risks of removal, and
affirming trial court finding that defendant knew he "would be
deported" when counsel told him "immigration officials 'could'
deport him and that they 'most likely would.'"); compare
Commonwealth v. DeJesus, 9 N.E.3d 789 (Mass. 2014) (telling
defendant he was "eligible for deportation" and would "face
deportation" held to be inadequate) with Neufville v. State, 13
A.3d 607, 614 (R.I. 2011) ("Counsel is not required to inform
their clients that they will be deported, but rather that a
defendant's 'plea would make [the defendant] eligible for
deportation.'") (emphasis added) (quoting Padilla, supra, 559
U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295). We need
not enter that thicket, given our view of the totality of
circumstances here.



                                         22                             A-5695-13T4
defendant, or otherwise failed to advise him in accordance with

the standards set forth in Padilla and Gaitan.

    Affirmed.




                               23                      A-5695-13T4
