An alien who wasn’t advised of the deportation consequences of a guilty plea must stay in custody until the U.S. Supreme Court decides if a watershed case on effective assistance of counsel is retroactive, a judge says.

Agustino Smith, who was once deported to Jamaica due to criminal convictions, reentered the U.S. illegally, which is a criminal offense. He is in custody awaiting trial.

U.S. District Judge Dickinson Debevoise held Monday that Smith’s predicament was directly caused by his lawyer in the first criminal case, who brokered the guilty plea.

“Here there can be no question … that Petitioner’s counsel failed to advise him that as a result of his plea under the immigration laws he faced deportation,” Debevoise wrote in Smith v. Warden of Essex County Jail, a published ruling.

But no habeas relief is available until the U.S. Supreme Court decides on the retroactive effect, if any, of its ruling in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Debevoise said.

In Padilla, the court said a defense attorney’s failure to apprise an immigrant of the deportation consequence of a guilty plea amounts to ineffective assistance of counsel and permits withdrawal of the plea.

Since then, courts around the country have been asked whether Padilla announced a new rule, which would make it prospective in application, or stated an abiding constitutional principle that could be raised retroactively.

On June 29, 2011, the U.S. Court of Appeals for the Third Circuit took the latter view. In Orocio v. U.S., 645 F. 3d 630, an immigrant was not informed that mandatory removal would result from pleading to a drug charge.

Shortly after, on Aug. 23, 2011, the U.S. Court of Appeals for Seventh Circuit reached the opposite conclusion in Chaidez v. U.S., 655 F.3d 684, holding that Padilla announced a new rule and thus has no retroactive effect.

The Supreme Court last April agreed to consider the issue and heard arguments in Chaidez on Nov. 1.

In Smith’s habeas petition, the government didn’t contest the merits of his constitutional claim under Orocio.

“The undisputed facts in this case establish that Petitioner’s attorney was ineffective,” Debevoise said.

Also, it’s clear that Smith would have been rational to reject the guilty plea because the “circumstances in the instant case are even more compelling than in Orocio,” the judge said, noting that Smith came to the United States at age eight and has no familiarity with his native Jamaica.

Applying Orocio, “a court could only find that Petitioner suffered prejudice by reason of his counsel’s ineffectiveness,” Debevoise added.

He noted that, since the conviction would have been set aside, there would be no basis for the pending charges of illegal re-entry, and Smith likely would be released.

Even so, Debevoise said, “Until the Supreme Court decides Chaidez it is premature to decide whether Petitioner is in custody of the United States in violation of the Constitution of laws of the United States.”

Smith entered the country with his mother and settled in Paterson, where he went to school and continued to live as an adult.

He later was charged with drug possession with intent to distribute and robbery. In October 1997, Smith, then 19, pleaded guilty before Passaic County Superior Court Joseph Falcone at the advice of his lawyer, Assistant Public Defender Margaret Kean.

Smith now claims that neither Kean nor Falcone advised him of the immigration consequences of pleading to aggravated felonies, circumstances that Debevoise called “extraordinary” because Smith’s family — including one child and another on the way — were all in Paterson. Falcone sentenced Smith to 12 years’ imprisonment.

Two years later, an immigration judge ordered Smith removed to Jamaica, and he was paroled for purposes of deportation in 2002.

In November 2010, Smith was arrested for unlawful re-entry and detained by the U.S. marshal in the Essex County Jail.

In January 2011, Smith moved for post-conviction relief in Superior Court in light of Padilla, issued 10 months earlier.

But Passaic County Superior Court Judge Miguel de la Carrera denied it in light of a ruling by the state Supreme Court that Padilla is not to be applied retroactively by New Jersey state courts.

Smith, now 34 and the father of four children, filed the petition for habeas corpus in May, claiming he would not have pleaded guilty in 1997 if he were fully informed.

Smith’s lawyer, Robert Olejar of Olejar & Olejar in Randolph, says the outcome was surprising.

“I don’t know why the judge did what he did,” Olejar says. “Under the law as it stands, [Smith] should’ve been granted the relief.”

Assistant U.S. Attorney Peter O’Malley opposed the petition. Office spokesman Matthew Reilly declines comment.