Counsel Can’t Downplay the Severity of an Aggravated Felony Conviction
Araiza v. State (HSC January 26, 2021)
Background. Edelmira Salayes Araiza, a citizen of Mexico and lawful permanent resident in the United States, was charged with theft by deception in the first degree after living in Hawai'i for decades. At her arraignment, the circuit court—the Hon. Judge Rhonda I. L. Loo presided—warned Araiza pursuant to HRS § 802E-4 that the case could have “severe and irreversible consequences, including immediate detention, deportation or exclusion from admission or denial [of] naturalization to the United States. Your attorney must advise you regarding the possible consequences this case may have on your immigration status.”
Months later she pleaded no contest and moved for a deferred acceptance of her plea. In her change-of-plea form, Araiza and her attorney certified that the document had be read to her and explained or interpreted to her. The form also included an advisement that pleading no contest may result in deportation, detention, and exclusion from admission to the United States and denial of naturalization. The form also stated that her lawyer “must investigate and advise” her about these issues. A similar warning was part of the court’s colloquy when she changed her plea. The circuit court adopted the no-contest plea and granted the deferral. Months later, the Department of Homeland Security detained her without bond and alleged she was removable because of her felony conviction.
Ariaza filed a petition seeking to set aside the conviction pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. In the petition, she claimed that her lawyer failed to advise her of the immigration consequences and constituted ineffective assistance of counsel. The petition was denied without a hearing and Araiza appealed. The ICA vacated the dismissal and remanded the case back to the circuit court to conduct an evidentiary hearing.
Before the evidentiary hearing, trial counsel submitted a declaration on behalf of the State. Counsel declared that he advised Araiza that deportation if convicted was “almost certain deportation” and strongly advised her to confer with an immigration attorney. He also explained that there were others at the Public Defender’s Office that had non-citizen clients who were not deported and could not “give her 100% confirmation that she’d be automatically deported[.]” Counsel conceded on cross-examination that he did not know and never told Araiza that convictions are automatically forwarded to Immigration and Customs Enforcement and that she would be automatically detained after changing her plea even though he knew that that would happen. He also admitted to advising her that she would not go to jail if she pleaded no contest. Counsel also admitted that he did not tell Araiza she was pleading to an “aggravated felony” that he was unaware of Padilla v. Kentucky, 559 U.S. 356, 368 (2010), and was unaware that he never contacted an immigration attorney.
Ariaza testified with a non-certified interpreter. The circuit court admonished the interpreter to “translate” everything she said. The interpreter responded that she “can only translate ideas, no words.” The proceedings continued. The circuit court found trial counsel credible and upheld the conviction. The ICA affirmed. Araiza petitioned for a writ of certiorari.
Failure to Adequately Advise Criminal Defendants about Immigration Consequences—Particularly Aggravated Felonies—Results in Ineffective Assistance of Counsel. The constitutional guarantee to trial counsel in a criminal case requires the effective assistance of counsel. Padilla v. Kentucky, 559 U.S. at 368; State v. Aplaca, 74 Haw. 54, 67 n. 2, 837 P.2d 1298, 1305 n. 2 (1992). Moreover, trial courts are required to inform criminal defendants that their attorney must “investigate and advise” them about the “specific impact” the case will have on their immigration status, including detention, deportation, exclusion from admission to the United States or denial of naturalization under the laws of the United States. HRS §§ 802E-2 & 4. Counsel must also tell their clients whether detention and deportation will be required. HRS § 802E-2. The failure to adequately advise a criminal defendant about immigration consequences results in the ineffective assistance of counsel under the United States and Hawai'i constitutions.
An “aggravated felony” is defined in the United States Code that requires removal. 8 USC § 1227(a). Theft in the first degree is an aggravated felony because it is an “offense that . . . involves fraud or deceit in which the loss to the victim or victim exceeds $10,000.” 8 USC § 1101(a)(43)(M)(i). it is well-established that “removal is a virtual certainty” for a conviction of an aggravated felony. Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204, 1211 (2018). It also subjects a person to mandatory detention without bond. 8 USC § 1226(c)(1)(B). Once removed, it also renders the person permanently inadmissible and precludes the person from becoming an American citizen. Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172 (9th Cir. 2018).
Examining the Advice Given Looks Beyond the Words. The HSC examined the actual advice given to Araiza. It is not enough to provide technically-accurate advice. According to the HSC, the reviewing court must determine if the advice accurately “conveys the legal consequences of a plea and the magnitude of the risk.” The “focus of the court’s inquiry must be on the essence of the information conveyed to the client to ensure that counsel clearly and accurately informed the client of the immigration consequences under federal law in terms the client could understand.” Budziszewski v. Comm’r of Corr., 142 A.3d 243, 250 (Conn. 2016).
The HSC held that that did not happen here. Even accurate advice is deficient when it “understates the likelihood that [a defendant] would be removed.” United States v. Rodriguez-Vega, 797 F.3d 781, 791 (9th Cir. 205). The HSC held that the advice here resulted in ineffective assistance of counsel. The HSC noted that while counsel said the conviction would result in “almost certain deportation,” the rest of counsel’s advice downplayed the severity of the situation:
“Almost certain deportation” was not the extent of his advice—he also downplayed the severity of the risk of deportation by telling Araiza that his office had seen defendants convicted of felonies who were not deported and that immigration officials do not know about state court proceedings. . . . The combined effect was to convey that deportation was very likely if Araiza pleaded no contest—and possibly more likely if she went to trial—but that there was a realistic possibility she would not be deported because it had not happened to other similarly-situated defendants. Indeed, the equivocal nature of trial counsel’s advice is evident from the fact that he told her a plea was “risking automatic deportation,” whereas being found guilty after a trial meant she would be deported.
These statements underplayed the serious legal consequences of the plea.
So What Should be Said? The HSC made it very clear what needs to be said and done:
[W]e hold that defense attorneys must advise their clients using language that conveys that deportation “will be required” by applicable immigration law for an aggravated felony conviction.
This case involves an aggravated felony and it was clear that conviction would result in deportation. Downplaying it or conveying that somehow she could avoid deportation is what resulted in ineffective assistance. Of course, an aggravated felony is pretty clear. If it wasn’t an aggravated felony, then perhaps there would be a different result. And of course, there might have been a different result for Araiza in federal court too.