                                NUMBER 13-11-00380-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

                 EX PARTE JOSE GABRIEL GALVAN-HERRERA


                     On appeal from the 206th District Court
                           of Hidalgo County, Texas.


              CONCURRING MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Perkes
         Concurring Memorandum Opinion by Justice Benavides

       I write separately to critique the current state, interpretation, and enforcement of

some of our country’s immigration laws and note the harmful effects that they have on

public policy.    What the federal and state governments have accomplished today

amounts to nothing short of an injustice for Jose Gabriel Galvan-Herrera, his family, and

others in similar situations.
                             I.     APPLICATION OF PADILLA

       While the majority did not reach the merits of Herrera’s habeas application in its

opinion, I find it necessary to address whether Padilla extends to Herrera’s

circumstances, assuming that he met the procedural bar discussed by the majority.

See Padilla v. Kentucky, 130 S.Ct. 1473, 1480–87 (2010).

       The Padilla Court made it clear that a lawyer’s failure to advise a client of

deportation consequences following a plea of guilty on a deportable offense falls “below

an objective standard of reasonableness.”           See id at 1482–83.      The Supreme Court

noted that the “weight of prevailing professional norms” supports the view that “counsel

must advise her client regarding the risk of deportation” when dealing with non-citizen

clients.   Id. at 1482 (citations omitted) (emphasis added).

       As a threshold matter, I would conclude that Padilla applies retroactively.          Under

Teague,1 a new rule should not be applied to cases on collateral review, but rather to

cases on direct review.     I agree with the reasoning of our two sister courts that Padilla is

not a “new rule” for purposes of Teague, but instead a new application of a

well-established rule of law and thus may apply retroactively to cases on collateral

review.    See Ex parte Tanklevskaya, No. 01-10-00627-CR, 2011 WL 2132722, at *4–7

(Tex. App.—Houston [1st Dist.] May 26, 2011, pet. denied); Ex parte De Los Reyes, 350

S.W.3d 723, 729 (Tex. App.—El Paso 2011, pet. granted).

       In this case, the State argued that Herrera did not meet his burden to prove



       1
         See Teague v. Lane, 489 U.S. 288, 311–16 (1989) (recognizing that new Constitutional rules
should not be applied retroactively, unless they fall under two exceptions).

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ineffective assistance of counsel because at the time of Herrera’s guilty plea, burglary

was not a deportable offense.           I am not persuaded by this argument.               Padilla requires

lawyers to provide full disclosure to non-citizen criminal clients whether the charged

offense is clearly deportable or not.            See id at 1482–83.           Following that reasoning,

counsel should advise a non-citizen criminal defendant of the potential risk of deportation

whether the threat is imminent or in the future.2 See id.                Here, Herrera’s counsel failed

to discuss the risk of deportation with his client, which I would conclude fell below the

standard of reasonableness and satisfies the first prong of Strickland because that

omission was “outside the range of professionally competent assistance.”                          See id. at

1483; Strickland v. Washington, 466 U.S. 668, 690 (1984).

        While Herrera’s burglary charge may not have been a deportable offense in 1987,

I believe Herrera’s counsel nonetheless should have advised him at the time of his plea

that possible deportation consequences may arise in the future.                   By doing so, he would

have provided full and complete representation to his non-citizen client. The Padilla

Court recognized that immigration law can be complicated, complex, and convoluted.

See 130 S.Ct. at 1483.            In cases where deportation consequences are unclear or

uncertain, a lawyer “need do no more than advise a non-citizen client that pending

criminal charges may carry the risk of adverse immigration consequences.”                                  Id.

Padilla appears to favor affirmative cautiousness and completeness over omissions

when giving advice to non-citizen criminal clients.                  See id.      In this case, I would


        2
          While I recognize that the Court of Criminal Appeals has noted that “a bar card does not come with
a crystal ball” with regard to ineffective assistance of counsel claims, see Ex parte Chandler, 182 S.W.3d
350, 359 (Tex. Crim. App. 2005), I cannot adopt such a creative metaphor in this case, particularly in light of
the practical effects of such an unjust deportation scheme.
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conclude that Herrera’s counsel’s non-performance amounted to ineffective assistance.

       Finally, under Strickland, a defendant must meet the “prejudice” prong in guilty

pleas by showing that “there is a reasonable probability that but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.”         See Hill v.

Lockhart, 474 U.S. 52, 58–60 (1985). Here, I would hold that Herrera met the prejudice

prong of Strickland because in his affidavit attached to his habeas petition, he stated that

his trial counsel (1) did not inquire about his immigration status, (2) did not advise him

that his plea would affect his immigration status, and (3) had he known what the effect of

his plea would be, he would have insisted on going to trial.     See Hill, 474 U.S. at 60.

       II.     EX-POST FACTO CLAUSE AND RETROACTIVE DEPORTATION

       The United States Supreme Court has expressly held that the Ex Post Facto

Clause3 of the United States Constitution has no application to deportation statutes like

the one involved in Herrera’s case because Congress has been given the exclusive

control over our nation’s immigration laws and deportation proceedings, which are

political policies with due process safeguards rather than punishments.       See Galvan v.

Press, 347 U.S. 522, 744 (1954).               However, I join other jurists and call for a

re-evaluation of whether the Ex Post Facto Clause of the Constitution applies to

retroactive deportation statutes.            See Nancy Morawetz, Rethinking Retroactive

Deportation Laws and the Due Process Clause, 73 N.Y.U. L. REV. 97, 103–06 (1998)




       3
       See U.S. CONST. art. I, § 9, cl. 3.

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(noting constitutional concern with the effect of ex post facto deportation statutes). 4 It

seems inappropriate that courts can sit idly by as Congress exercises its power to deport

individuals for past convictions, rather than address questions such as “how long ago a

crime was committed, how minor the crime, how plainly the person has shown

rehabilitation, how serious the consequences of deportation, or how tenuous the

justification for deportation.”       See id. at 101. The preceding questions seem pertinent

to Herrera’s case, but will nonetheless go unanswered by this Court.

        Today, I share the same views and concerns that Justice Douglas pondered in his

dissent nearly sixty years ago about a deportation statute that had retroactive effect with

respect to a crime committed by a non-citizen fourteen years prior to its enactment.

See Marcello v. Bonds, 349 U.S. 302, 303–21 (1955). In his dissent, Justice Douglas

argued that nothing in the Constitution exempts non-citizens from ex post facto laws, not

even a hypothetical law as simple as calling for the deportation of any non-citizen who

ever violated any traffic law.        Id.   (Douglas, J. dissenting).

        We cannot ignore the human element behind retroactive deportation statutes.

Many lawful permanent residents have lived in the United States for decades and have



        4
           See Scheidemann v. I.N.S., 83 F.3d 1517, 1527 (3d Cir. 1996) (Sarokin, J., concurring) (writing
that “[t]he legal fiction that deportation following a criminal conviction is not punishment is difficult to
reconcile with reality, especially in the context of this case. Mr. Scheidemann entered this country at age
twelve; he has lived here for thirty-six years; he has been married to an American citizen for twenty-four
years; he has raised three children all of whom are American citizens; his elderly parents are naturalized
citizens; two of his four siblings are naturalized American citizens, and all four of them reside permanently in
the United States; he has no ties to Colombia, the country to which he is to be deported; and he has fully
served the sentence imposed upon him. If deportation under such circumstances is not punishment, it is
difficult to envision what is. I think the deportation of aliens for the commission of crimes is clearly
punishment. If Mr. Scheidemann's deportation could be characterized, as it should be, as punishment, I
would conclude that the statutory bar to the discretionary waiver is a violation of the Ex Post Facto Clause of
the Constitution.”).
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strong ties to this country through family, business, and worship. Again, Herrera made

the point clear in his affidavit that had he known that his immigration status could

potentially be affected by his plea, he “would have insisted on going to trial.”         This

sentiment is one that is recognized by the Padilla Court and one that many non-citizens

share:

         We too have previously recognized that “‘[p]reserving the client's right to
         remain in the United States may be more important to the client than any
         potential jail sentence.’”

Padilla, 130 S.Ct. at 1483 (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 323 (2001)). Because

the livelihoods of too many non-citizens—and their families—in this country are at stake, I

fail to see any legal, political, or practical justification for Congress’s continued power to

pass seemingly unfair and unjust retroactive deportation statutes.

         For these reasons, I reluctantly concur.




                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
26th day of April, 2012.




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