Counsel must ask Clients if They're Citizens


Najera v. State (ICA February 13, 2018)
Background. Jorge Najera was born in Mexico and is a Mexican citizen. He moved to Hawaii with his uncle when he was ten years old. He married a United States citizen in 1999 and became a permanent resident alien in 2001 when he was twenty. He and his wife have four children. He was also charged with attempted methamphetamine trafficking in the first degree. Najera reached a plea agreement: in exchange for pleading no contest to the amended charge of promoting a dangerous drug in the first degree in order to seek probation instead of prison. At the change-of-plea hearing, the circuit court informed Najera that if he was not a citizen of the United States he could “possibly [be] looking at consequences of deportation, exclusion from admission to the United States, or denial [of] naturalization under the laws of the United States.” Najera told the court he understood. The change-of-plea form had similar language indicating he understood. The circuit court accepted his plea, found him guilty, and set the matter for sentencing. The circuit court sentenced Najera to probation for ten years and one year in jail.

After serving one year in jail, Najera was detained by immigration authorities and placed in deportation proceedings. He filed a petition to set aside the judgment on the grounds that his attorney was ineffective because he did not advise him and he did not know that he would be subject to “automatic deportation.” Had he known of these consequences, he would have raised defenses at trial. Counsel for Najera responded and stated he “cannot recall what [he] advised [Najera] with respect to his change of plea.” The circuit court denied the petition without a hearing. Najera appealed.

Rule 40 Petitions and Ineffective Assistance of Counsel. A Rule 40 petitioner is entitled to an evidentiary hearing if the “petition alleges facts that if proven would entitle the petitioner to relief[.]” HRPP Rule 40(f). Generally, the petitioner need only present a “colorable claim.” “To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change [the outcome of the case], however, a petitioner’s conclusions need not be regarded as true.” Dan v. State, 76 Hawaii 423, 427, 879 P.2d 528, 532 (1994).

A common claim in a Rule 40 petition is ineffective assistance of counsel. In an ineffective assistance of counsel claim, the petitioner must show that counsel’s performance was not “within the range of competence demanded of attorneys in criminal cases.” Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 976 (1993). It is a two-part test. The defendant must show (1) “specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence”; and (2) the “errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.” Id.

Counsel’s Failure to Advise the Defendant about the Possibility of Deportation is Ineffective Assistance of Counsel. The seminal case is Padilla v. Kentucky, 559 U.S. 356 (2010). The SCOTUS held that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 364. And so when deportation consequences are “unclear or uncertain,” counsel need “do no more than advise a noncitizen that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 369. If, however, the immigration consequences are obvious because the immigration statute is “succinct, clear, and explicit,” more is needed. Id. at 368. Counsel “must inform her client whether his plea carries the risk of deportation.” Id. at 374.

The ICA held that the immigration consequences in pleading no contest to the amended were “succinct, clear, and explicit.” See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . 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.”). The ICA further held that under Padilla, counsel had a clear duty to give Najera more exacting and correct advise on the consequences of the plea agreement.

. . . Even if the Defendant Never tells Counsel he’s a Noncitizen. The ICA also examined the fact that Najera did not tell his lawyer about his citizenship status. The ICA refused to place the burden on the client to tell his or her lawyer about citizenship status. According to the ICA, “defense counsel is in a better position to understand that a criminal conviction may have serious deportation consequences.” The ICA held that it is counsel’s job to inquire about citizenship status. Other jurisdictions concur. Commonwealth v. Clarke, 949 N.E.2d 892, 905 (Mass. 2011); People v. Picca, 947 N.Y.S.2d 120, 126 (N.Y. App. Div. 2012).

The ICA noted that this burden is not a high one. It can be satisfied by including it on the intake questionnaire. The ICA reviewed the record and given the deferential standard of review, vacated the dismissal order and remanded the case to set an evidentiary hearing.

Judge Reifurth’s Dissent. Judge Reifurth dissented. His opening paragraph succinctly and eloquently states his position:

The majority extends the holding in Padilla v. Kentucky, 559 U.S. 356 (2010) to “impose[] the burden on defense counsel who lacks knowledge of the citizenship status of a client to ask.” Respectfully, the majority retroactively expands counsel’s obligation beyond anything the Supreme Court required in Padilla, or that Hawaii case law has required before or since. Because Padilla does not require that defense counsel must inquire about a client’s immigration status, because I believe that Hawaii law already provides reasonable assurances that defendants are made aware that a plea may have immigration consequences, because I recoil from intervening in the attorney-client relationship to the extent of directing the questions that counsel must ask his or her clients in order to effectively represent them, and because I am disinclined to label counsel’s representation as “ineffective” due to his failure to meet a standard never before in place, I dissent.

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