Advice to Alien That Plea to CSC 3 "Could" Lead to Deportation Adequate

Herrera Sanchez v. State, Minn.Ct.App., 8/3/2015.  WARNING: This post contains explicit references to Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  The state charged Mr. Herrera Sanchez with two counts of third degree criminal sexual conduct and one count of furnishing alcohol to a minor.  He pled guilty.  Mr. Herrera Sanchez was lawfully in the country but he was not a citizen. Here's how the immigration consequences colloquy went during the plea hearing:

Q: And before signing [the plea agreement] did the two of us have an opportunity to review it and you had a chance to ask me any questions that you may have had?

A: Yes. . . . .

Q: Now, are you a citizen of the United States?

A: No.

Q: All right. Do you understand that as a result of a plea in this particular matter that, if you’re not a citizen of the United States, a plea of guilty could result in either deportation, exclusion from admission to the United States, or denial of citizenship?

A: Yes.

Q: Knowing all those rights, do you still want to go forward with your plea?

A: Yes.

The question in this post conviction petition is whether trial counsel gave "clearly erroneous" advice about the immigration consequences of Mr. Herrera Sanchez's guilty plea because counsel said that by pleading guilty he "could" be deported.  After taking testimony on this question, the post conviction court found that counsel had told Mr. Herrera Sanchez that he "was looking at deportation" following the plea, and that this was effective assistance of counsel.

Padilla said that when the applicable immigration statute was not "succinct and straightforward" the counsel need do no more than advise a noncitizen that pending criminal charges may carry a risk of adverse immigration consequences.  On the other hand, when the deportation consequences are "truly clear" and counsel can "easily determine" those consequences "simply from reading the text of the statute" then there is a duty to give more explicit advice about the likelihood of deportation.  

The immigration statute says that any alien who is convicted of an aggravated felony is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).  It gives several examples of what it means by "aggravated felony," one of which is "sexual abuse of a minor."  Which is what Mr. Herrera Sanchez pled guilty to.  Mr. Herrera Sanchez said that third degree criminal sexual conduct fits this example of an aggravated felony to a T and so it was an easy job for counsel to have figured out that he would - not "could" - be deported.  The court of appeals, however, countered that the immigration statute doesn't define "sexual abuse of a minor" and the court could not find any case by a court "binding this one" that says that CSC 3 is an aggravated felony.   Never mind that the Board of Immigration Appeals thinks that CSC 3 is such an aggravated felony.  So, once again, the resort to the dictionary is enough to carry the day.  Counsel's performance met Padilla's requirements.

Mr. Herrera Sanchez also argued that the plea, itself, was inadequate to establish a factual basis because counsel utilized too many leading questions.  That goes no where because if the record contains sufficient evidence to support the conviction it survives a challenge.