Judge Stephen Ukeiley

Guang moved to vacate her plea to attempted unauthorized practice of profession, a class A misdemeanor, claiming she was deprived effective assistance of counsel as her lawyer failed to advise her of the immigration consequences of her plea. Guang’s current attorney stated the conviction “really hurts” Guang’s political asylum application, as the immigration judge might impute a negative inference. However, counsel acknowledged Guang’s plea would not automatically result in a denial as the decision to grant asylum is discretionary. The court noted Guang did not plea to a crime of moral turpitude or other offense that would subject her to mandatory deportation. Yet it stated she satisfied the first prong of Strickland as the omission by her former attorney constituted representation below objective, reasonable standards under Padilla v. Kentucky. Since there was no credible evidence the application for asylum would be denied due to the misdemeanor, or that it would be granted absent the conviction, Guang’s claims were speculative. The court denied a motion to vacate the plea, ruling Guang failed to satisfy the second prong of Strickland that she would not have accepted the plea had she known the immigration consequences.