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Hawaii Supreme Court: Trial Counsel Must Inform Defendant That Deportation ‘Will Be Required’ for Plea to Aggravated Felony, IAC for Advising Deportation ‘Almost Certain’

by David M. Reutter

THe Supreme Court of Hawaii held where defendant was precluded from discretionary relief from deportation as result of her plea of no contest to an aggravated felony charge, counsel was ineffective for advising her that it was “almost certain” that she would be deported when in fact deportation was mandatory.

The Court’s opinion was issued in a certiorari proceeding brought by Edelmira Salayes Araiza, a Mexican citizen and lawful permanent resident (“LPR”) of the U.S. She lived in Hawaii for over 22 years and has two children who were born in the U.S.

In 2014, Araiza pleaded no contest to Theft in the First Degree, an aggravated felony under federal immigration law, and to Welfare Fraud. Her attorney advised her that a no contest plea would make deportation “almost certain” but that his office had criminal defendants “convicted of felonies who are not automatically deported” because immigration is “handled by federal authorities who do not oversee state courts.” Counsel advised her that she needed to weigh “risking automatic deportation” if she were to plead no contest versus “going to trial and possibly being found guilty … and then being deported.”

The trial court sentenced Araiza to five years’ probation on the first count and a year of probation on the second count to run concurrently. Four months later, the U.S. Department of Homeland Security detained Araiza without bond and advised that she was removable because the theft conviction is an aggravated felony.

A month later, Araiza filed a postconviction motion, claiming her trial counsel failed to advise her of the plea consequences resulting in ineffective assistance of counsel that precluded her plea from being knowingly and intelligently entered. The trial court summarily denied the motion, but that result was reversed on appeal. On remand, the trial court held a hearing.

During the hearing, Araiza used a Spanish-speaking interpreter, but almost as soon as it began, the court twice instructed the interpreter that everything Araiza says must be translated. The interpreter advised that “I can only translate ideas, no words.” When the court asked Araiza if she wanted a different interpreter, she declined the offer.

At the hearing, trial counsel testified about the advice he gave regarding a no-contest plea and its immigration consequences. Based on counsel’s testimony and a written plea form in which Araiza agreed counsel had informed her of immigration consequences, the trial court denied Araiza’s motion. That result was affirmed on appeal. Araiza filed a writ of certiorari in the Hawaii Supreme Court that was accepted for review.

The Court noted that under Padilla v. Kentucky, 559 U.S. 356 (2010), defendants have a Sixth Amendment right to receive immigration advice from their defense attorney. Similarly, article I, section 14 of the Hawaii Constitution provides for such right, the Court stated and explained that “under Hawaii’s Constitution, defendants are clearly afforded greater protection of their right to effective assistance of counsel,” quoting State v. Aplaca, 837 P.2d 1298 (1992). Moreover, under HRS §§ 802E-2 and 802E-4, courts must inform defendants that their attorneys will “investigate and advise” them about “the specific impact” the case will have on their immigration status, including “(1) detention, (2) deportation, (3) exclusion from admission to the United States, or (4) denial of naturalization pursuant to the laws of the United States.” Consequently, defense attorneys unquestionably have a duty to adequately advise clients of the immigration consequences of a plea.

The Court determined that trial counsel’s advice failed to “capture the severity of a plea to an aggravated felony.” See Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (removal “is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long [she] has previously resided here.”). The case law and federal statutes make it clear that removal “is considered mandatory” following an aggravated felony conviction, the Court noted. See 8 U.S.C. § 1227(a). In addition, the U.S. Supreme Court has ruled that there is a difference between “certain” and “almost certain,” and even though the difference may seem slight, a defendant worried about immigration consequences must know when deportation is “certain” because it will affect their decision. Lee v. United States, 137 S. Ct. 1958 (2017).

The Court announced: “we 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.” Applying that standard to the present case, the Court held that Araiza’s trial counsel provided ineffective assistance by failing to adequately advise her of the immigration consequences of her plea.

The Court then addressed the situation with the interpreter at Araiza’s hearing, noting that the interpreter was neither certified nor registered with the judiciary. The Court then instructed: “we hold that, if a court appoints an interpreter who is not certified by the judiciary as proficient in the foreign language, the court ‘should conduct a brief examination of the interpreter to determine if the interpreter is qualified to interpret the proceeding.” Hawaii Rules for Certification of Spoken and Sign Language Interpreters Appendix B, § I(D).

Accordingly, the Court vacated the judgment of the court of appeals and remanded to the circuit court for further proceedings consistent with its opinion. See: Araiza v. State, 481 P.3d 14 (Haw. 2021) 

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Related legal cases

Araiza v. State

Sessions v. Dimaya

Supreme Court of the United States
584 U.S. ___; 138 S.Ct. 1204; 200 L.Ed.2d 549; 2018 U.S. LEXIS 2497 *

JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, PETITIONER v. JAMES GARCIA DIMAYA


January 17, 2017, Argued, Reargued October 2, 2017;
April 17, 2018, Decided

No. 15-1498.


Notice: The LEXIS pagination of this document is subject to change pending release of the final published version.

Prior History: [*1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Dimaya v. Lynch, 803 F.3d 1110, 2015 U.S. App. LEXIS 18045 (9th Cir., Oct. 19, 2015)

Disposition: 803 F. 3d 1110, affirmed.


Syllabus

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U. S. C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(F). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, 125 S. Ct. 377, 160 L. Ed. 2d 271, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” [*2] of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208, 127 S. Ct. 1586, 167 L. Ed. 2d 532.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 578. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.

Justice Kagan delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, concluding that §16’s residual clause is unconstitutionally vague. Pp. 6-11, 16-25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residual [*3] clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 578. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 579, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 579. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 579. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential [*4] risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 578. Pp. 6-11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16-24.

(1) First, the Government argues that §16(b)’s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”—in other words, a court applying §16(b) may not “consider risks arising after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the temporal language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime [*5] is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focuses on the risk of “physical force,” “trains solely” on the conduct typically involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140, 130 S. Ct. 1265, 176 L. Ed. 2d 1. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court’s analysis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that [*6] they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16-21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21-24.

Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, concluded in Parts II and IV-A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed because the removal of an alien is a civil matter rather than a criminal case. This Court’s precedent forecloses that argument. In Jordan v. De George, 341 U. S. 223, 71 S. Ct. 703, 95 L. Ed. 886, the Court considered what vagueness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the [*7] ensuing years calls that reasoning into question. This Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. ___, ___, 137 S. Ct. 1958, 198 L. Ed. 2d 476. Pp. 4-6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be abandoned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact-based approach is an untenable interpretation of §16(b). 576 U. S., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 583. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical approach. This Court’s decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.” Taylor v. United States, 495 U. S. 575, 601, 110 S. Ct. 2143, 109 L. Ed. 2d 607. And the words “by its nature” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinarily entails. Finally, given the daunting difficulties of accurately “reconstruct[ing],” often [*8] many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”—and associated inequities—is as great in §16(b) as in ACCA. Johnson, 576 U. S., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 583. Pp. 12-15.

Justice Gorsuch, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 578, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute’s operation is unavailing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 577, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. [*9] Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving either the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1-19.



Counsel: Edwin S. Kneedler argued the cause for petitioner.

E. Joshua Rosenkranz argued the cause for respondent.

Judges: Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, in which Ginsburg, Breyer, Sotomayor, and Gorsuch, JJ., joined, and an opinion with respect to Parts II and IV-A, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Gorsuch, J., filed an opinion concurring in part and concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined as to Parts I-C-2, II-A-1, and II-B.

Opinion by: KAGAN

Opinion
Justice Kagan announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, and an opinion with respect to Parts II and IV-A, in which Justice Ginsburg, Justice Breyer, and Justice Sotomayor join.

Three Terms ago, in Johnson v. United States, this Court held that part of a federal [*10] law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___, ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569, 576 (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.



I
The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. See §§1229b(a)(3), (b)(1)(C). Accordingly, removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here.

The INA defines “aggravated felony” by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes. §1101(a)(43); see Luna Torres v. Lynch, 578 U. S. ___, ___, 136 S. Ct. 1619, 194 L. Ed. 2d 737, 739 (2016). According to one item on that long list, an aggravated felony includes “a crime of violence (as defined in section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(F). The specified statute, 18 U. S. C. §16, provides the federal criminal code’s definition of “crime of violence.” Its two parts, often [*11] known as the elements clause and the residual clause, cover:

“(a)an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

“(b)any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Section 16(b), the residual clause, is the part of the statute at issue in this case.

To decide whether a person’s conviction “falls within the ambit” of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U. S. 1, 7, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004). The question, we have explained, is not whether “the particular facts” underlying a conviction posed the substantial risk that §16(b) demands. Ibid. Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers. 1 The §16(b) inquiry instead turns on the “nature of the offense” generally speaking. Ibid. (referring to §16(b)’s “by its nature” language). More precisely, §16(b) requires a court to ask whether “the ordinary case” of an offense poses the requisite risk. James v. United States, 550 U. S. 192, 208, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007); see infra, at 7.

In th

 

 

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