Judge’s Admonishments about Possible Deportation Did Not Foreclose Ineffective Assistance of Counsel Claim

United States v. Batamula, No. 12-20630 (5th Cir. June 2, 2015) (Dennis, Prado, Brown) (per curiam)

Defendant Innocent Rutahagara Batamula pleaded guilty to making false statements right after a judge’s plea colloquy that the felonies committed were “likely” to result in deportation. However, prior to the Batamula’s plea, he was never advised by counsel that conviction would result in deportation. Had the Batamula known of deportation or the possibility thereof, he would have “‘refused to make the plea,’ would have pleaded not guilty, and would have insisted on going to trial.”

The panel reversed the district court’s denial of Batamula’s claim of ineffective assistance of counsel under the Sixth Amendment and remanded.  The district court held that when a judge informs the defendant of possible deportation in the plea colloquy, counsel’s failure to advise on immigration consequences is thereby “cured,” with defendant’s relevant constitutional claim forfeited or waived, estopping the defendant from showing prejudice. The panel disagreed since “forfeiture of certain constitutional claims,” like effective counsel, occur only when “the plea is entered knowingly and voluntarily and with competent assistance and advice by defense counsel.” The defendant did not have the latter.

The risk of deportation, per the Supreme Court, is akin to “banishment or exile” and warrants the need for counsel to inform the defendant of the consequences. The Court in Padilla v. Kentucky, 559 S. Ct. 356 (2010), recognized that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Additionally, defense counsel has certain, basic obligations to the defendant in complying with the Sixth Amendment. These include “effectively investigating and advising the client regarding immigration consequences before the client decides whether to plead guilty.”

The panel reasoned that a judge’s admonishments “during a plea colloquy are not a substitute for effective assistance of counsel,” nor do they “supersede errors by the defense counsel.” These admonishments also do not “foreclose” the defendant from demonstrating prejudice when counsel is ineffective. Further, even if counsel is ineffective and a defendant accepts his plea intelligently, voluntarily, and knowingly, the Supreme Court has rejected arguments that the defendant was “not deprived of any legal benefit to which he was entitled.” Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012). In a similar decision, the Court in Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), took the right to counsel further, asserting that even if the trial was fair and the defendant was guilty, the defendant was still entitled to effective assistance of counsel and can bring a claim of prejudice if counsel was otherwise.

Thanks to FPD Intern Adam Pena for this post.

180+ Day Incarceration, Regardless of Nature of Offense, Negates “Good Moral Character” for Non-LPR Cancellation of Removal; GMC Period Ends Upon Final Administrative Decision

Rodriguez-Avalos v. Holder, No. 13-60736 (5th Cir. Mar. 4, 2015) (Davis, Dennis, Costa) (per curiam)

This case involves the statutory interpretation of the good moral character (GMC) requirement, 8 U.S.C. § 1101(f)(7), for non-LPR cancellation of removal, 8 U.S.C. § 1229b(b)(1).  Rodriguez-Avalos is a Mexican citizen who entered the United States without being admitted or paroled in April 1999.  He was living in Nebraska when he was interviewed by a Department of Homeland Security (DHS) agent in connection with an identity theft investigation of the grocery store where Rodriguez-Avalos worked.  He admitted to having no documentation enter or work in the United States, and he was arrested that day and served with a Notice to Appear (NTA)—May 3, 2011.   

Criminal Case: Following the arrest, Rodriguez-Avalos was indicted with falsely and willfully representing himself to be a U.S. citizen in violation of 18 U.S.C. § 911.  He pled guilty and, on January 18, 2012, he was sentenced to 14 months of imprisonment and served approximately 7 months before being released.

Immigration Case: Rodriguez-Avalos was “formally” served with the NTA on November 28, 2012.  He subsequently appeared in immigration court and conceded his removability but applied for cancellation of removal.  Section 1229b(b)(1), or non-LPR cancellation require 10 years of physical presence “immediately preceding the date of such application”; “good moral character during such period”; no convictions for a crime involving moral turpitude (CIMT), controlled substance offense, or aggravated felony; and a showing that removal would result in exceptional and extremely unusual hardship to U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent, or child.  See § 1229b(b)(1).  Section 1101(f)(7) defines “good moral character” in part as requiring no confinement, as a result of conviction, to a penal institution for an aggregate period of 180 days or more during the GMC period. 

Is Rodriguez-Avalos still eligible for non-LPR cancellation if he was confined for 7 months due to a § 911 conviction within the 10 years prior to applying for cancellation?  Not according to the immigration judge, the Board of Immigration Appeals, or the Fifth Circuit panel.

Rodriguez-Avalos presented two arguments:

1)      His § 911 conviction is not a CIMT and, thus, his incarceration should not preclude him from establishing GMC.

2)      His prison term fell outside of the relevant time period because of the stop-time rule, 8 U.S.C § 1229b(d)(1), which ends the 10-year period when an NTA is served upon the petitioner

The panel rejected both arguments:

“[A]pplying the Skidmore standard, the BIA did not err in concluding that a petitioner cannot establish good moral character if he has been incarcerated for 180 days or more, regardless of the nature of the underlying crime of conviction.”  The BIA’s conclusion was a plain reading of the text, and such a reading is consistent with Fifth Circuit precedent. 

“[T]he BIA’s interpretation of Section 1229b(b)(1) as requiring a petitioner to establish good moral character during the ten-years immediately preceding the final administrative decision regarding the petitioner’s application for cancellation of removal is entitled to deference under Chevron.”  See Inre Ortega-Cabrera, 23 I & N Dec. 793, 798 (BIA 2005).  The panel rejects Rodriguez-Avalos’ argument that the 10-year GMC period must mirror the 10-year physical presence period which stops upon the service of the NTA.  The BIA determined that extending the GMC period to the final administrative decision best comported with congressional intent because it would allow for consideration of any false testimony during the proceeding, see § 1101(f)(6), and allow the immigration judge to determine the petitioner’s most recent behavior.

How does this affect criminal defense attorneys?  It’s one more immigration consequence to add to your checklist. If your client is otherwise eligible for non-LPR cancellation of removal (10-year physical presence in US, GMC, no disqualifying convictions, and has USC/LPR qualifying relatives for whom your client’s removal could arguably result in extreme and unusual hardship), be aware that confinement of 180 days or more after a conviction—regardless the nature of the offense—will make him or her ineligible.  Fight for pretrial release, a sentence less than 180 days, and definitely advise your client of the consequences of the conviction and a 180+ day sentence.

Other consequences?  The panel’s interpretation of § 1101(f)(7) is in the context of § 1229b(b)(1).  Nevertheless, this opinion could impact the analysis of the 180-day incarceration analysis in any other GMC context, such as naturalization and VAWA relief.  Also, note the panel did not decide the issue by finding § 911 to be a CIMT.

Resources for Understanding New Executive Actions on Immigration

President Obama made his announcement yesterday expanding Deferred Action for Childhood Arrivals and creating Deferred Action for Parents as well as detailing other initiatives. 

Here are some links to information available online to help you understand the knew programs and how they can help your clients.  Keep in mind defense attorneys' duty to advise immigrant clients of the immigration consequences of their pleas and convictions. 

USCIS Website on the Actions Announced 11/20/14 (pretty reader-friendly): http://www.uscis.gov/immigrationaction#2

USCIS Website for DACA (pre-changes, includes criminal history that renders someone ineligible): http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

DHS Website on Executive Action (collects the memos related to the 11/20 announcement): http://www.dhs.gov/immigration-action?utm_source=hp_feature&utm_medium=web&utm_campaign=dhs_hp

DHS Memo on Prosecutorial Discretion (DACA & DAP) (describes the changes to DACA and the eligibility requirements for DAP): http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf

DHS Memo on the New Removal Priorities (details what would make someone ineligible for DAP): http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf

DHS Memo on Discontinuing Secure Communities: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf

White House on Fixing the Immigration System: http://www.whitehouse.gov/issues/immigration/immigration-action

Applications for the expanded DACA should be accepted within 90 days.  Applications for the new DAP should be accepted within 180 days.  Typically, the USCIS website is a great resource for the most up-to-date information regarding programs such as these - the eligibility requirements and application procedure.