Aguilar v. State
Aguilar v. State
Opinion of the Court
*108*311In this post-conviction proceeding, petitioner appeals from a judgment denying his petition for post-conviction relief that contained two related claims involving the advice he received on the immigration consequences of his underlying guilty plea. First, petitioner alleges that he was denied adequate assistance of counsel where, despite being advised that he would be deported if he entered a guilty plea, he was not advised that a plea would render him ineligible for consideration under the Deferred Action for Childhood Arrivals (DACA) program, which allows specified noncitizens who were brought to the United States as children to apply and potentially receive a limited deferral from removal proceedings in an exercise of prosecutorial discretion. Second, petitioner asserts that his plea was not knowingly or voluntarily entered, because he was misinformed by his attorney such that he did not fully understand the immigration consequences that would result from his guilty plea. The post-conviction court rejected both claims, concluding that petitioner received adequate assistance of counsel such that he was adequately informed of the consequences of his plea and that he knowingly and voluntarily entered into the plea. For the reasons that follow, we affirm the post-conviction court's judgment.
We review the post-conviction court's legal conclusions for errors of law. Chew v. State of Oregon ,
Petitioner, a noncitizen born in 1993, was brought to the United States in either 1994 or 1997 when he was a minor. In 2013, petitioner was charged with assault in the *312third degree and riot, based on his participation in a gang-related attack involving five or more persons that resulted in the victim suffering physical injury. On the same day that he was charged, petitioner met with his court-appointed counsel, and he admitted his involvement and guilt to the charges to his attorney during that meeting. About eight days later, on a Friday, the state extended a written plea offer, which trial counsel presented to petitioner the following Monday morning for review. The offer included a term of probation and a 10-day jail term with credit for time served. At that point, petitioner had been in custody for 11 days. Trial counsel also discussed petitioner's immigration status with him at that meeting:
"During my conversation with [petitioner] we specifically discussed his immigration status. [Petitioner] informed me that he was not a citizen and was not in the United States legally. I informed [petitioner] that if he plead[ed] guilty to the charges he would be deported unless [Immigration and Customs Enforcement (ICE) ] decided not to pursue deportation proceedings. [Petitioner] indicated that he was going to retain an immigration attorney to represent him in his immigration issues. I inquired if [petitioner] wanted me to set the court appearance out for a period of time to provide him additional time to talk with *109the immigration attorney. [Petitioner] indicated that he did not want to set the appearance over as he would be released from the custody of the Marion County Jail that day if he accepted the plea."
Petitioner and trial counsel then reviewed the plea petition, which included the following paragraph:
"10. I understand that if I am not a citizen of the United States or if I am in this country without permission, conviction of a crime will result in my DEPORTATION from, or exclusion from admission to, the United States. I also understand that I may be denied United States citizenship as a result of my conviction."
(Capitalization and boldface in original.) Ultimately, petitioner signed the plea petition, pleaded guilty to third-degree assault and riot after a short colloquy with the trial court, and was found guilty of the charges and sentenced under the terms of the plea agreement. Petitioner was released *313from the Marion County Jail to ICE custody, and removal proceedings were initiated.
Thereafter, petitioner initiated this post-conviction proceeding in which he alleged, among other claims, that his trial counsel provided constitutionally inadequate and ineffective assistance by failing to advise petitioner of the immigration consequences of his guilty plea, and a separate, but related, claim that his plea was unknowingly and involuntarily made because he was misinformed about the immigration consequences of his plea. In his petition for post-conviction relief, petitioner conceded that the plea petition provided accurate advice on immigration consequences of the plea deal. In petitioner's view, however, a constitutionally adequate attorney would have conducted research on immigration law and advised petitioner that a guilty plea to the charges would render him ineligible to be considered for the DACA program-a program in which the Department of Homeland Security (DHS) exercises prosecutorial discretion in deferring the enforcement of federal immigration laws against specified individuals who arrived in the United States before they were 16 years old and who meet other criteria, including not having been convicted of a felony, a significant misdemeanor, or multiple misdemeanor offenses.
Post-conviction relief shall be granted when a petitioner has established a "substantial denial" of a state or federal constitutional right and "which denial rendered the conviction void." ORS 138.530(1)(a). For claims of inadequate and ineffective assistance of counsel, the state and *314federal standards for post-conviction relief are "functionally equivalent." Montez v. Czerniak ,
To sustain a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, a petitioner must prove by a preponderance of the evidence both that trial counsel failed to exercise the professional skill and judgment necessary to "diligently and conscientiously *110advance the defense" and that the petitioner was prejudiced as a result of trial counsel's deficient performance. Krummacher v. Gierloff ,
As an initial matter, petitioner recognizes that Gonzalez v. State of Oregon ,
"The level of specificity that petitioner would impose on defense counsel goes far beyond what this court has required as an incident of constitutionally adequate assistance. As noted, in determining what counsel must tell their clients about the direct consequences of a guilty plea, the courts have held that a defense counsel must advise his or her client of the maximum penalty that the trial court can impose as well as the possibility of a minimum sentence. The court has not held that the Oregon Constitution requires counsel to attempt to specify the likelihood that the trial court might impose either the maximum or minimum sentence."
In this case, although trial counsel did not discuss eligibility for deferring removal proceedings under a prosecutorial discretion program, trial counsel did inform petitioner that he would be deported unless ICE decided not to pursue removal proceedings. That advice satisfies the requirement from Gonzalez that defense counsel "advise clients who are not United States citizens that a criminal conviction 'may result' in deportation." Id . at 458,
Turning to petitioner's claim under the Sixth Amendment, the gravamen of petitioner's argument on appeal is that, under Padilla , constitutionally effective counsel must provide advice about a plea's effect on immigration and the consequences of a plea on eligibility for a temporary stay of deportation proceedings. We disagree with petitioner's assertion that Padilla requires criminal defense counsel to give such comprehensive and specific immigration advice.
In Padilla , the petitioner was a lawful permanent resident for four decades who faced deportation after pleading guilty to a drug offense.
"[i]mmigration law can be complex, and it is a legal specialty of its own. * * * There will, therefore, undoubtedly be numerous situations in which deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward * * * a criminal defense attorney need do no more than advise a noncitizen *317client that pending criminal charges may carry a risk of adverse immigration consequences."
In contrast to the incorrect advice given in Padilla , here trial counsel advised petitioner that he "would be deported unless ICE decided not to pursue removal proceedings," and trial counsel reviewed with petitioner the plea petition, which explained, among other things, that if he was not a citizen or was in the county without permission, a conviction "will result" in deportation from, or exclusion from admission to, the United States. The plea petition further explained that petitioner may be denied citizenship as a result of a conviction. Thus, trial counsel's advice complied with the Sixth Amendment guarantee of effective counsel articulated by Padilla because counsel advised petitioner of the risk of adverse immigration consequences. To the extent that petitioner suggests that Padilla requires constitutionally adequate trial counsel to provide additional advice relating to temporary relief from removal proceedings under DACA, we disagree.
In order to show that counsel was ineffective because of his failure to advise petitioner on the broader immigration consequences, such as DACA eligibility, it was petitioner's burden to show that the failure to provide such advice fell below an objective standard of reasonableness. See Strickland , 466 U.S. at 688,
Petitioner's related claim that his plea was entered unknowingly and involuntarily based on trial counsel's advice with respect to the immigration consequences of his plea similarly falls short. In petitioner's view, his plea *318"was entered into unknowingly and involuntarily as he did not understand the required legal sanction for his plea." Although petitioner contends in his second claim that he did not know the consequences of his plea, we understand the premise of his contention to be the same as it was for his first claim, viz. , that trial counsel was required to advise him that his plea would disqualify him for DACA. As we conclude above, that premise is erroneous. Accordingly, we reject petitioner's contention that the post-conviction court erred in rejecting his second claim.
In short, we reject both of petitioner's arguments assigning error to the denial of post-conviction relief. Although trial counsel *112did not provide comprehensive immigration advice on the consequences of a guilty plea or discuss DACA eligibility with petitioner, trial counsel did advise petitioner that "he would be deported unless ICE decided not to pursue deportation proceedings," and the plea petition that counsel reviewed with petitioner also informed petitioner that his plea and the conviction would result in deportation. Accordingly, because trial counsel's advice was constitutionally sufficient under both Gonzalez and Padilla , the post-conviction court did not err in denying post-conviction relief.
Affirmed.
See U.S. Citizenship & Immigration Services, Consideration of Deferred Action for Childhood Arrivals (DACA) , U.S. Citizenship & Immigration Services, https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca (accessed April 23, 2018).
Reference
- Full Case Name
- Oscar Francisco AGUILAR, aka Oscar Francisco Aguilar-Vasquez v. STATE of Oregon, Defendant-Respondent.
- Cited By
- 2 cases
- Status
- Published