Defense Counsel Need Only Read The Immigration Statute - Never Mind Cases - To Satisfy Duty To Provide Immigration Consequences Advice Under Padilla

Sanchez v. State, Minn.S.Ct., 2/22/2017.  Talk about perfect timing. Justice Stras gets to suit up in his professorial robes, mount the podium and teach the rest of us a little bit about the Kafkaesque work of immigration.  Sorry, no Powerpoint.  Mr. Herrera Sanchez pled guilty to third degree criminal sexual conduct, which led ICE to initiate removal proceedings against him.  To avoid that Mr. Herrera Sanchez moved to withdraw his guilty plea; he said that his attorney provided ineffective assistance by failing to accurately inform him that his plea would lead to his removal.  

So, just what advice did counsel provide to Mr. Herrera Sanchez? Well, first counsel had him execute the standard issue plea petition which has this to say about immigration:

My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship.” (Emphasis added.)

This is bad advice in Mr. Sanchez's case, which ICE agents demonstrated by arresting Mr. Sanchez the moment he left the court room.  Next, during the plea colloquy counsel told Mr. Herrera Sanchez that his plea of guilty "could result in either deportation, exclusion from admission to the United States, or denial of citizenship."   More bad advice, see ICE actions.  At the post conviction hearing, defense counsel testified that he told Mr. Sanchez that he would be deported as a result of his plea.

At sentencing the court gave Mr. Herrera Sanchez a stay of imposition of sentence. As mentioned already, this turned out to be a short-lived perk because ICE took Mr. Herrera Sanchez into custody as soon as the gavel fell. ICE then issued a final administrative removal order, explaining that third degree criminal sexual conduct involving a minor was an "aggravated felony" under the immigration laws. Any alien who is convicted of an aggravated felony at any time after admission is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).

Mr. Herrera Sanchez said that Padilla required his counsel to have advised him that his plea would result in his deportation rather than just that deportation was a possibility.  Padilla, says that when the consequences of a plea are "succinct and straightforward" then counsel has to convey what that consequence is.  Otherwise, counsel need only provide some vague, lawyer esque answer, "Well, this may happen or that may happen, no one really knows."  Therein lies the rub: how does counsel ascertain whether the immigration consequences of a plea are "clear and certain."  

Both immigration administrative interpretations and case law state that Mr. Herrera Sanchez's plea rendered him deportable.  The statutes, not so much.  There are two statutes that render a noncitizen presumptively deportable for the commission of an "aggravated felony" and "sexual abuse of a minor" is included in the list of felonies considered to be "aggravated".  The problem is, however, that Congress left it to immigration and the courts to flesh out just what state crimes constituted "sexual abuse of a minor." Justice Stras makes the somewhat dubious claim that the federal courts have not been able to agree that an adult who rapes a child has committed "sexual abuse of a minor."  He supports this claim by citing Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016), which doesn't say that at all:

Because it requires no mens rea, the Utah statute punishes a broader range of conduct than the conduct that falls within the INA's generic “sexual abuse of a minor” offense, which requires proof of at least a “knowing” mens rea. A conviction under the Utah statute, then, does not fall categorically within the INA's generic “sexual abuse of a minor” offense; Rangel–Perez's Utah conviction does not qualify as an “aggravated felony” under the INA; and he is not disqualified from seeking discretionary cancellation of removal.

Although Justice Stras clearly relishes diving into the weeds to root out the intricacies of federal immigration law he concludes that it's way beyond defense counsel's constitutional requirements of effective assistance of counsel to do the same.   Essentially he says just read the statute; if it's not abundantly clear then any old answer will do. 

Justice Lillehaug concurred in the result.  He said that it was "clear as a bell" that Mr. Sanchez would be deported as a result of his plea; ICE drove home that clarity by arresting Mr. Sanchez the minute he left the courtroom.  Justice Lillehaug essentially chides Justice Stras for the lecture as being unnecessary.  This is because at the post conviction hearing defense counsel testified that he did advise Mr. Sanchez that he would be deported if he pled guilty. The post conviction court accepted that assertion in its findings of fact. End of story, Padilla's duty fulfilled.