2026 IL App (1st) 250937
No. 1-25-0937
September 25, 2026
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) 19 CR 01785 01
)
ALBERTO GORDON, ) The Honorable
) James Michael Obbish,
Defendant-Appellant. ) Judges, presiding.
PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court, with
opinion.
Justice Mikva concurred in the judgment and opinion.
Justice C.A. Walker specially concurred in the judgment, with opinion.
OPINION
¶1 Defendant Alberto Gordon, age 52, appeals the trial court’s denial of the petition that
he filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
2024)). Section 2-1401 permits a defendant to seek relief from judgment if the judgment “was
entered based on a plea of guilty,” and it “has potential consequences under federal
immigration law.” 735 ILCS 5/2-1401(c-5) (West 2024). Defendant’s section 2-1401 petition
No. 1-25-0937
challenged his prior guilty plea, arguing that his plea counsel was ineffective for failing to
advise him of mandatory federal immigration consequences, namely, deportation.
¶2 Denying the petition, the trial court found that defendant’s plea counsel was not
ineffective because the applicable federal statute did not explicitly indicate deportation. For
the following reasons, we reverse.
¶3 BACKGROUND
¶4 On October 10, 2019, pursuant to an agreement with the State, defendant pled guilty to
two counts: (1) one count of possession of child pornography, and (2) one count of sexual
exploitation of a child under the age of 13. The child pornography count is not at issue on this
appeal. At the plea, defendant was represented by a private attorney. Per the agreement with
the State, defendant was sentenced to sex offender probation for two years. On March 1, 2022,
the trial court terminated defendant’s probation “satisfactorily.” In an affidavit submitted in
support of his petition, defendant averred that exactly “[t]wo years later, on the morning of
March 22, 2024, ICE officers came to my residence and detained me.” 1 The Public Defender
of Cook County filed defendant’s section 2-1401 petition shortly thereafter, on July 29, 2024.
¶5 In his section 2-1401 petition, defendant sought to vacate his 2019 guilty plea on the
ground that his plea counsel failed to advise him that a plea to sexual exploitation of a child
would subject him to “automatic or presumptively mandatory deportation.” Defendant alleged
that he had been a lawful permanent resident in the United State since the age of six, that he
was then 50 years old, that he had no prior felony convictions, and that he had served in the
Marines. In his attached affidavit, defendant averred that, if he had known that his plea to
Defendant’s brief asserts that ICE came to his house three weeks after defendant completed his
1
probation. Given the conflict with defendant’s own affidavit, this appears to be in error.
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sexual exploitation would make his deportation “virtually certain,” he would have rejected the
plea offer and “taken the case to trial.”
¶6 Defendant alleged that the forms served on him by United States Immigration and
Customs Enforcement (ICE) indicated that he was deportable (1) “under section
237(a)(2)(E)(i) of the Immigration and Nationality Act (INA), which involves convictions for
crimes of domestic violence, stalking, and child abuse, child neglect, or child abandonment”
and (2) “pursuant to the aggravated felony deportability ground set forth under section
237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of murder,
rape or sexual abuse of a minor pursuant to section 101(a)43(A), 8 U.S.C. § 1101(a)(43)(A).”
¶7 On March 26, 2025, the trial court held an evidentiary hearing on defendant’s petition.
Defendant’s witnesses included himself; his sister Tiffany Gordon, who is an attorney and who
hired private counsel to represent defendant; and David Faherty, an attorney with the National
Immigrant Justice Center, who testified as an expert witness in the field of immigration law.
The State called defendant’s plea counsel.
¶8 On May 8, 2025, the trial court issued a written order in which it set forth its findings,
both factual and legal. At the hearing, exactly what plea counsel told defendant was a hotly
contested issue, with defendant testifying that plea counsel had not mentioned any immigration
consequences, while plea counsel claimed that he had told defendant that the offense qualified
as an aggravated felony which would result in “auto deportation.”
¶9 Resolving this credibility dispute, the trial court apparently found neither witness
particularly credible. Instead, the trial court found that “the evidentiary hearing established
that [plea counsel] advised [defendant] that he faced potential deportation consequences
resulting from his plea.” The order then repeated the word “potential” four times in the next
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four sentences, thereby emphasizing the level of warning provided was potential rather than
automatic, as counsel had testified. On appeal, neither party argues that the trial court abused
its discretion in reaching this factual finding.
¶ 10 Further, the trial court found that the judge who took the plea failed to provide
defendant with the statutorily-required admonishment regarding potential immigration
consequences. Section 113-8 of the Code of Criminal Procedure of 1963 requires that,
“[b]efore the acceptance of a plea of guilty, *** the court shall give the following advisement
to the defendant in open court:
“ ‘If you are not a citizen of the United States, you are hereby advised that conviction
of the offense for which you have been charged may have the consequence of
deportation[.]’ ” 725 ILCS 5/113-8(a) (West 2024).
The trial court’s factual finding regarding the plea court’s failure to provide the statutorilyrequired admonishment is not challenged on appeal.
¶ 11 In its legal analysis, the trial court quoted the Illinois Supreme Court’s opinion in
People v. Valdez, 2016 IL 119860, ¶ 22, which stated: “[W]here the face of the [Immigration
and Nationality Act (INA) (8 U.S.C. § 1101 et seq. (2024))] does not succinctly, clearly, and
explicitly indicate that a conviction subjects a defendant to mandatory deportation, counsel
need only advise a defendant that his plea ‘may’ have immigration consequences.” Applying
this quote to the statutes before it, the trial court then found that the INA did not explicitly
indicate that defendant’s convictions subjected him to mandatory deportation. The trial court’s
order devoted several pages to the child pornography count. However, defendant does not raise
any issues on appeal with respect to that count.
¶ 12 With respect to the sexual exploitation offense, which is the offense at issue on this
appeal, the trial court noted: “The expert may be correct in stating that sexual exploitation of a
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child is an aggravated felony, but the issue is whether the INA succinctly, clearly and explicitly
indicates the offense is deportable.” The trial court explained that, “when the government
alleged a state conviction qualifies as an aggravated felony under the INA, courts use the
categorical approach to determine whether the state offense is comparable to an offense listed
in the INA.” In support, the trial court cited Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).
The trial court found that neither the expert nor the petition addressed the categorical approach.
Nonetheless, even if they had, the trial court found that this approach called for a detailed
analysis and, as a result, the INA itself did not clearly indicate that the offense was deportable.
¶ 13 Based upon these factual and legal findings, the trial court found that plea counsel was
not ineffective, where plea counsel advised defendant of potential consequences and that was
all the law required in this case. As a result, the trial court denied defendant’s petition.
Defendant filed a timely notice of appeal on the same day as the trial court’s order, and this
appeal followed.
¶ 14 ANALYSIS
¶ 15 Defendant filed a 2-1401 petition seeking to vacate his guilty plea, on the ground that
his plea counsel was ineffective. The petition argued that his plea counsel was ineffective for
failing to advise defendant of mandatory immigration consequences that would result from his
plea. However, the trial court found that it was not clear that defendant’s conviction for sexual
exploitation of a minor would subject defendant to mandatory deportation and, thus, it found
that his counsel was not ineffective. On appeal, defendant argues that this legal finding by the
trial court was in error, while the State agrees with the trial court that it was not clear that
deportation was a mandatory consequence. For the following reasons, we reverse.
¶ 16 I. Jurisdiction
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¶ 17 Although no party has challenged jurisdiction, an appellate court always has an
independent duty to consider its own jurisdiction, whether or not the issue was raised by any
of the parties. National Collegiate Student Loan Trust 2007-4 v. Phelps, 2025 IL App (1st)
231783, ¶ 18. As already noted above, Section 2-1401 permits a defendant to seek relief from
judgment if the judgment “was entered based on a plea of guilty” and it “has potential
consequences under federal immigration law.” 735 ILCS 5/2-1401(c-5) (West 2024). Section
2-1401 permits such a petition to be filed “at any time.” 735 ILCS 5/2-1401(c-5) (West 2024).
Thus, the petition was timely filed, and the State does not argue otherwise.
¶ 18 Further, defendant’s notice of appeal was certainly filed within 30 days of the order
appealed from, since it was filed on the same day that the order was entered. Since defendant’s
notice was filed “within 30 days after the entry of the final judgment” denying his petition,
Illinois Supreme Court Rule 303(a)(1) (eff. July 1, 2017) provides us with jurisdiction to hear
this appeal.
¶ 19 II. Standard of Review
¶ 20 Regarding the standard of review, both parties cite and quote Warren County Soil &
Water Conservation District v. Walters, 2015 IL 117783, for our consideration. The quantum
of proof needed to sustain a section 2-1401 petition is a preponderance of the evidence. Warren
County, 2015 IL 117783, ¶ 51. To the extent that the petition presents a fact-dependent
challenge, we review the trial court’s ruling only for an abuse of discretion. Warren County,
2015 IL 117783, ¶ 51. An abuse of discretion occurs when the trial court’s ruling was palpably
erroneous, contrary to the manifest weight of the evidence, or manifestly unjust. Lozman v.
Putnam, 379 Ill. App. 3d 807, 822 (2008).
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¶ 21 However, when a section 2-1401 petition raises a purely legal question, then our review
is de novo. Warren County, 2015 IL 117783, ¶ 47. De novo review means that we owe no
deference to the trial court’s decision and that we stand in the same position that the trial court
did. People v. Morgan, 2025 IL 130626, ¶¶ 21-22. We perform the same analysis that a trial
court would. Townsend v. Estates of Hyde Park, LLC, 2026 IL App (1st) 250096, ¶ 15. In the
case at bar, we review de novo the purely legal question of whether or not it was clear that the
statute indicated that a conviction for sexual exploitation of a minor would subject defendant
to deportation.
¶ 22 The State also argues that, based upon plea counsel’s testimony, this court “could” find
that counsel advised defendant of mandatory consequences. However, the State does not argue
that the trial court abused its discretion when, after a full evidentiary hearing, it resolved a
credibility dispute and made a factual finding that counsel advised of “potential” consequences.
Arguments not made are waived. Lozman, 379 Ill. App. 3d at 826 (providing a list of supporting
cases); Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Generally, if an evidentiary hearing involved
fact and credibility determinations, a trial court’s factual finding will not be reversed on appeal
unless it is manifestly erroneous. People v. English, 2013 IL 112890, ¶ 23. As this court has
said many times, a reviewing court accords a trial court this deference because it is the trial
court who is in the best position to observe the witnesses and, hence, judge credibility. E.g.,
People v. McCoy, 2026 IL 131565, ¶ 51. Thus, we decline the State’s invitation to reject the
trial court’s factual finding, particularly when no abuse-of-discretion argument was made.
¶ 23 As a result, the issue before us is a purely legal question to which de novo review
applies.
¶ 24 III. Ineffective Assistance of Counsel
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¶ 25 As noted, defendant’s petition is based on the alleged ineffective assistance of his plea
counsel. It is well established that, before deciding whether or not to plead guilty, a defendant
is entitled to the effective assistance of competent counsel. Padilla v. Kentucky, 559 U.S. 356,
364 (2010). To determine whether a defendant was denied this right to effective assistance of
counsel, we apply the familiar two-prong test set forth in Strickland v. Washington, 466 U.S.
668 (1984). People v. Albanese, 104 Ill. 2d 504, 526-27 (1984) (adopting Strickland for
Illinois); Padilla, 559 U.S. at 364, 366 (applying Strickland to guilty-plea representation).
¶ 26 Under Strickland, a defendant must prove both (1) that his attorney’s actions
constituted errors so serious as to fall below an objective standard of reasonableness and
(2) that, absent these errors, there was a reasonable probability that the outcome of the
proceeding would have been different. People v. Brown, 2025 IL App (1st) 230772, ¶ 87. The
first prong addresses counsel’s performance, while the second prong asks whether defendant
was prejudiced as a result. Brown, 2025 IL App (1st) 230772, ¶ 88.
¶ 27 However, in the case at bar, the State has conceded the second, or prejudice, prong.
The State’s appellate brief forthrightly states that “the State did not contest prejudice below
and are [sic] not contesting it on appeal.” Thus, only the first, or performance, prong is at issue
on appeal.
¶ 28 IV. Prevailing Professional Norms
¶ 29 Under the first prong, a defendant must prove that his counsel’s performance fell below
an objective standard of reasonableness, as measured against prevailing professional norms.
Brown, 2025 IL App (1st) 230772, ¶ 88. When it comes to advice regarding the deportation
consequences of pleading guilty, the prevailing professional norm was set forth in the United
States Supreme Court case of Padilla, 559 U.S. 356. In that case, the United States Supreme
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Court held: “The weight of prevailing professional norms supports the view that counsel must
advise her client regarding the risk of deportation.” Padilla, 559 U.S. at 367. Both parties agree
that the Padilla case is the starting point for our analysis.
¶ 30 In Padilla, the defendant alleged, as does defendant here, that he would have insisted
on going to trial if he had not received incorrect advice from his attorney and if there was no
other option. Padilla, 559 U.S. at 359. The supreme court “agree[d] with Padilla that
constitutionally competent counsel would have advised him that his conviction for drug
distribution made him subject to automatic deportation.” Padilla, 559 U.S. at 360. As in the
case at bar, the court did not need to reach the issue of prejudice. Padilla, 559 U.S. at 360.
¶ 31 The supreme court found that, in the particular case before it, “the terms of the relevant
immigration statute are succinct, clear, and explicit in defining the removal consequence for
Padilla’s conviction.” Padilla, 559 U.S. at 368. The court found that “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.” Padilla, 559 U.S. at 368. The court found that
“[t]his” was “not a hard case *** to find deficiency” for three reasons which it then listed.
Padilla, 559 U.S. at 368. Those three reasons were (1) “[t]he consequences of Padilla’s plea
could easily be determined from reading the removal statute, [(2)] his deportation was
presumptively mandatory, and [(3)] his counsel’s advice was incorrect.” Padilla, 559 U.S. at
369.
¶ 32 The supreme court then contrasted the facts of Padilla’s case with those of other future,
possible cases, where a different result would be warranted. Padilla, 559 U.S. at 369. The court
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explained that there will “undoubtedly be numerous situations in which the deportation
consequences of a particular plea are unclear or uncertain.” Padilla, 559 U.S. at 369. When
that happens, “[t]he duty of the private practitioner in such cases is more limited.” Padilla, 559
U.S. at 369. “When the law is not succinct and straightforward”—in other words, the opposite
of Padilla’s case—then “ 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.”
(Emphasis added.) Padilla, 559 U.S. at 369.
¶ 33 In the case at bar, defendant argues that the mandatory consequences were succinct and
straightforward. In contrast, the State argues that the consequences were not succinct and clear
and, thus, counsel was not ineffective for advising about potential consequences.
¶ 34 V. Statutes at Issue
¶ 35 To determine whether mandatory consequences were straightforward, we turn first to
the relevant statutes. Normally, when we turn to statutes, we reiterate the oft-repeated rules of
statutory interpretation. E.g., Thornley v. Board of Trustees of the River Forest Police Pension
Fund, 2022 IL App (1st) 210835, ¶ 18. However, in Padilla, the court did not state or apply
these rules; rather what it asked was whether the mandatory consequences were succinct and
clear. Padilla, 559 U.S. at 368. So, we do the same.
¶ 36 Defendant was convicted of sexual exploitation of a minor, under subsection (a-5) of
section 11-9.1 of this state’s Criminal Code of 2012. 720 ILCS 5/11-9.1(a-5) (West 2018).
Subsection (a-5) provides: “A person commits sexual exploitation of a child who knowingly
entices, coerces, or persuades a child to remove the child’s clothing for the purpose of sexual
arousal or gratification of the person or the child, or both.” 720 ILCS 5/11-9.1(a-5) (West
2018).
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¶ 37 Section 1227 of the INA is titled “Deportable aliens,” and it specifies when aliens shall
be deported. 8 U.S.C. § 1227 (2024). The section begins by stating that any alien “shall” be
removed, upon the order of the Attorney General, if the alien falls “within one or more of the
following classes of deportable aliens.” 8 U.S.C. § 1227(a).
¶ 38 Defendant argues that his deportation was mandatory because his offense, sexual
exploitation of a minor, fell within one or more of the following classes, namely, (1) an
“[a]ggravated felony” (8 U.S.C. § 1227(a)(2)(A)(iii)), and (2) “a crime of child abuse” (8
U.S.C. § 1227(a)(2)(E)(i)). Another section of the INA provides a definition of the term
“aggravated felony” and defines it to include “murder, rape, or sexual abuse of a minor.” 8
U.S.C. § 1101(a)(43) (2024). Defendant argues that the term “sexual abuse of a minor”
includes sexual exploitation of a minor, based on (1) a common-sense understanding of the
term, (2) decisions of the Board of Immigration Appeals, (3) the testimony of defendant’s
expert at the evidentiary hearing, and (4) decisions by the Seventh Circuit Court of Appeals,
including Correa-Diaz v. Sessions, 881 F.3d 523, 526-28 (7th Cir. 2018), Velasco-Giron v.
Holder, 773 F.3d 774, 776 (7th Cir. 2014), Lara-Ruiz v. Immigration & Naturalization Service,
241 F.3d 934, 939-42 (7th Cir. 2001), Guerrero-Perez v. Immigration & Naturalization
Service, 242 F.3d 727, 735 n.3 (7th Cir. 2001), Espinoza-Franco v. Ashcroft, 394 F.3d 461,
464-65 (7th Cir. 2004), Gattem v. Gonzalez, 412 F.3d 758, 762-66 (7th Cir. 2005), and Gaiskov
v. Holder, 567 F.3d 832, 835 (7th Cir. 2009).
¶ 39 As for the second class, namely, “a crime of child abuse,” defendant does not argue
that the term is further defined in the INA, as the term “aggravated felony” was. Rather,
defendant argues, as he did with the term “sexual abuse of a minor,” that common sense
dictates that “a crime of child abuse” includes sexual exploitation of a minor. In support, he
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quotes a dictionary. Where our goal is to determine whether a statute is plain, it is reasonable
to look to a dictionary. Courts have often stated that, “[t]o ascertain the plain and ordinary
meaning of a word, a reviewing court may use a dictionary.” E.g., Thornley, 2022 IL App (1st)
210835, ¶ 18. Defendant quotes the 1979 edition of Black’s Law Dictionary which defined
child abuse as “[a]ny form of cruelty to a child’s physical, moral or mental well-being.” Black’s
Law Dictionary 217 (5th ed. 1979); see Black’s Law Dictionary 239 (6th ed. 1990) (providing
the same definition). Twenty years later, Black’s Law Dictionary similarly defined child abuse
as “[a]n intentional or neglectful physical or emotional injury imposed on a child, including
sexual molestation.” Black’s Law Dictionary 10 (7th ed. 1999). Applying the earlier definition,
defendant argued that sexual exploitation undoubtedly harmed a child’s moral and mental wellbeing. Moreover, the later definition, which added emotional injury, further supports
defendant’s argument.
¶ 40 Additionally, we observe that the second class is titled not simply child abuse but “a
crime of child abuse.” 8 U.S.C. § 1227(a)(2)(E)(i)). A key word in that title is “a.” The statute
does not say, “the crime of child abuse.” Use of the definite article “the” might have suggested
that there was one and only one definite crime of child abuse. But the use of “a,” the indefinite
article, suggests just the opposite. It would be hard to argue, given the definitions and our
common-sense understanding of the term, that sexual exploitation of a minor was not a crime
of child abuse.
¶ 41 In light of the fact that the INA explicitly classifies both sexual abuse of a minor and a
crime of child abuse as offenses where a defendant “shall” be deported (8 U.S.C. § 1227(a))
and in light of the fact that defendant’s offense, sexual exploitation of a minor, was clearly a
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crime of child abuse as explained above, the face of the statute explicitly “indicate[d]” that a
conviction would subject defendant to mandatory deportation. Valdez, 2016 IL 119860, ¶ 22.
¶ 42 At the very least, after seeing the words “sexual abuse of a minor” in the statute, in
connection with sexual exploitation of a minor, a reasonably effective practitioner in Illinois,
who had any doubts, would be expected to do a routine Westlaw search among Illinoisgoverning caselaw, such as Seventh Circuit precedent. Such a search would have uncovered
numerous on-point cases, as we discuss below.
¶ 43 The offense for which defendant was convicted provides: “A person commits sexual
exploitation of a child who knowingly entices, coerces, or persuades a child to remove the
child’s clothing for the purpose of sexual arousal or gratification of the person or the child, or
both.” 720 ILCS 5/11-9.1(a-5) (West 2018). The Seventh Circuit has repeatedly affirmed the
Board of Immigration Appeals’ definition of “sexual abuse of a minor” under the INA, which
includes the enticement, coercion, or persuasion of a child “ ‘ to engage in, or assist another
person to engage in, sexually explicit conduct *** or other form of sexual exploitation of
children.’ ” (Emphasis added.) Correa-Diaz, 881 F.3d at 526 (quoting 18 U.S.C. § 3509(a)(8)
(2012) and affirming the denial of defendant’s petition); Velasco-Giron, 773 F.3d at 776
(noting that the Seventh Circuit had considered sexual abuse of a minor five times before and
“each time” found this definition reasonable, and citing in support (1) Lara-Ruiz, 241 F.3d at
939-42, (2) Guerrero-Perez, 242 F.3d at 735 n.3, (3) Espinoza-Franco, 394 F.3d 461,
(4) Gattem, 412 F.3d at 762-66, and (5) Gaiskov, 567 F.3d at 838).
¶ 44 Both the State and the trial court relied on the Illinois Supreme Court’s opinion in
Valdez, 2016 IL 119860, to assert that any computer search makes the consequences unclear.
However, the first Strickland prong—which is the only issue in our case—was not at issue in
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Valdez. Regarding the first prong, the Valdez court found that “[i]t is undisputed in this case
that defendant received inadequate legal advice from counsel.” Valdez, 2016 IL 119860, ¶ 27.
As a result, the reviewing court’s comments about the first prong were mere dicta. 2 Exelon
Corp. v. Department of Revenue, 234 Ill. 2d 266, 277 (2009) (dicta are statements that are not
necessary to the decision).
¶ 45 Although dicta, the issues and facts in Valdez are a far cry from the facts of our case.
First, the issue in Valdez, which involved burglary, is readily distinguishable from the issue
before us. Although the INA did not list burglary as a class of deportable offenses, the court
below had held that defense counsel had a duty to determine whether defendant’s conviction
fit into any of the possible, general categories of deportable offenses. Valdez, 2016 IL 119860,
¶ 21. The court below found that minimal research would have shown that burglary qualified
as a crime involving moral turpitude, which was a deportable class. Valdez, 2016 IL 119860,
¶ 21. However, the Illinois Supreme Court disagreed, finding that there was “no clear
consensus” on this issue. Valdez, 2016 IL 119860, ¶ 23. Further, the supreme court found that,
where a crime falls into a broad classification, such as crimes involving moral turpitude, the
law is not succinct and straightforward. Valdez, 2016 IL 119860, ¶ 22.
¶ 46 By contrast, there is a clear consensus about the definition of sexual abuse in the
Seventh Circuit, which governs federal cases in our state. Second, child sex abuse, which is
covered twice-over by the INA, is a far more narrow category than a crime involving moral
turpitude. Third, as we already noted above (supra ¶¶ 39-40), the consequences were indicated
2
The State argues that we should disregard another case for this very reason. The State’s brief
argues that we should disregard Lee v. United States, 582 U.S. 357 (2017), because “whether plea counsel
provided deficient performance in Lee was not even a question before the Court.” In Lee, as in Valdez, it
was undisputed that the defendant had received unreasonable representation. Lee, 582 U.S. at 360;
Valdez, 2016 IL 119860, ¶ 27. If we should disregard Lee for this reason, the same should also be true for
Valdez.
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on the face of the statute. Fourth, our supreme court in Valdez emphasized that the trial court
in that case had admonished defendant about immigration consequences, whereas in our case
the plea judge failed to give even the minimum, namely, the statutorily-required one line.
Valdez,2016 IL 119860, ¶¶ 30-32. Thus, to the extent that the dicta in Valdez is applicable, it
supports our finding that Strickland’s first prong is satisfied in this case.
¶ 47 The State argues that federal and Illinois criminal codes define criminal sexual abuse
as requiring physical contact, while sexual exploitation does not. This argument is, in effect,
that counsel should have done a computer search to define these terms but should have limited
his search to criminal codes, 3 i.e.. no caselaw. That kind of arbitrary line drawing baffles us,
particularly when there is Seventh Circuit caselaw right on point, rejecting this idea that
physical contact is required. Regarding the INA, the Seventh Circuit held: “The statute
indicates that persuading, inducing, or enticing a minor to engage in sexually explicit conduct
amounts to sexual abuse.” (Emphasis added.) Gattem, 412 F.3d at 765; see Velasco-Giron, 773
F.3d at 776 (noting that the Seventh Circuit had considered sexual abuse of a minor five times
before and “each time” found reasonable the definition that includes sexual exploitation of
children). 4 Thus, we do not find this argument persuasive.
¶ 48 SUMMATION
¶ 49 In summary, Valdez, 2016 IL 119860, and Padilla, 559 U.S. 356 stand for the
proposition that, if the controlling statute is succinct and straightforward, then competent
counsel would definitively advise a defendant that the conviction is “automatically
3
The term “sexual abuse” is explicitly defined elsewhere in the federal code to include “sexual
exploitation of children.” 18 U.S.C. § 3509 (2024).
4
The State’s brief acknowledges that “the 7th Circuit undoubtedly has interpreted immigration
law to determine what constitutes sexual abuse of a minor.”
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deportable” or “mandatory deportation” in no uncertain terms. In short, where the statute is
clear and succinct, counsel must also be clear and succinct.
¶ 50
¶ 51 Where the statute is not as clear and contains a broad classification, then more nebulous
cautionary language is appropriate. Valdez set forth the following premise: where the question
is whether a particular crime like burglary fits into a broad classification “like moral turpitude”
then the statute/law is not succinct and straightforward. Therefore, counsel can use less
definitive language like “may,” “might”, “could” or “potentially” to inform the defendant of
the deportation consequences.
¶ 52 In the case at bar, the trial court found that it was not clear that defendant’s conviction
for sexual exploitation of a minor would subject defendant to mandatory deportation and, thus,
it found that his counsel was not ineffective. This is where we disagree with the trial
court. The statute lists two crimes, relevant to this case, that would be auto deportable: “a
crime of child abuse” and “sexual abuse of a minor.” The statute’s use of “a” before “crime
of child abuse” suggests that multiple crimes of child abuse are included. This phrase or
category of crimes is more specific than that of Valdez, which dealt with “moral
turpitude.” Here the category sufficiently narrows the relevant crimes to those involving abuse
of children. As such, the “sexual exploitation of a child” would clearly constitute “a crime of
child abuse;” just as “drug distribution” constituted “a controlled substance conviction” in
Padilla.
¶ 53 Further, on appeal, the State does not even challenge the prejudice prong. Thus, it is a
given that, absent the alleged error, there was a reasonable probability that the outcome of this
guilty-plea proceeding would have been different--ie. defendant would not have pled guilty.
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Brown, 2025 IL App (1st) 230772, ¶ 87. As a result, whatever defendant was alleged to have
done falls out as a consideration here. The focus is on counsel, particularly since defendant
failed to receive even the statutorily-required admonishment from the plea court. After
listening to both counsel and defendant in live testimony, the trial court found as a matter of
fact that defendant was advised only of potential consequences. Thus, we were presented with
a pure question of law, regarding whether more was required.
¶ 54 CONCLUSION
¶ 55 Where the statute clearly and succinctly includes sexual exploitation of a child as a
deportable offense, counsel was ineffective for failing to inform defendant that a plea was
subject to mandatory deportation. Therefore, since defendant has satisfied the first prong of
Strickland. and the second prong is not at issue, we reverse and remand for further proceedings
consistent with this opinion.
¶ 56 Reversed and remanded.
¶ 57 Justice C.A. Walker, specially concurring:
¶ 58 I concur in the judgment reversing and remanding for further proceedings. I write
separately because this is a close case. The record reflects that defendant’s plea counsel advised
him that his plea carried potential immigration consequences, and I do not take lightly the
circuit court’s finding that counsel provided that advice. At the same time, Padilla v. Kentucky,
559 U.S. 356, 369 (2010), recognizes a meaningful distinction between advising a defendant
that a conviction may have immigration consequences and advising a defendant when the
immigration consequence is a near certainty. But given the immigration consequences
presented here and the evidence that defendant would have rejected the plea had he understood
those consequences, I agree that further proceedings are warranted.
- 17 -No. 1-25-0937
¶ 59 I emphasize that my conclusion is limited to the circumstances presented here. I do not
suggest that counsel must predict the outcome of every immigration proceeding or that every
conviction carrying immigration consequences requires more than a warning that such
consequences are possible. As the Padilla court acknowledges, “immigration law can be
complex” and there will “undoubtedly be numerous situations in which the deportation
consequences of a particular plea are unclear or uncertain.” 559 U.S. at 369. I simply conclude
that, on this record, defendant is entitled to further consideration of whether the advice he
received satisfied Padilla and Valdez.
- 18 -No. 1-25-0937
People v. Gordon, 2026 IL App (1st) 250937
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CR1785-01; the Hon. James Michael Obbish, Judge, presiding.
Attorneys James E. Chadd and Douglas R. Hoff, of State Appellate for Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Eileen O’Neill Burke, State’s Attorney, of Chicago (John E. for Nowak, Douglas P. Harvath, Matthew Connors, and Noah Appellee: Montague, Assistant State’s Attorneys, of counsel), for the
People.
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