Ineffective assistance warrants habeas relief

Petitioner is entitled to have her plea-based petit larceny conviction vacated because counsel did not advise her of the consequences the plea could have on her immigration status.

Facts

Petitioner, born in El Salvador, became a lawful permanent United States resident in 2015. Her primary language is Spanish. She has an 8-year-old daughter. She was charged with three misdemeanor and three felony larceny offenses in 2017. After being charged, she left the country to visit her father. When she returned, she was not granted re-admission as a returning resident but instead was paroled for a deferred inspection, which allowed her to remain in the country while her criminal case was resolved.

Petitioner’s trial counsel knew she was a lawful permanent resident and had been detained for an immigration issue. Counsel told petitioner that if convicted of all six charges, she probably could not stay in the country.

Counsel negotiated an agreement, in which petitioner would plead to one petit larceny count, receive a 12-month suspended sentence and pay a $1,000 fine. Counsel recommended petitioner accept the agreement, mistakenly believing it carried no immigration consequence. He never told petitioner “of the likelihood of adverse immigration consequences.” Petitioner later testified that if she knew about the adverse consequences, she never would have accepted the agreement.

Counsel had her sign a “Trial Advisement and Plea,” written in English, that stated a plea or finding of guilt could result in deportation or other adverse immigration consequences. Petitioner did not have an interpreter to assist her in reviewing the form.

About a month after accepting the plea, petitioner was served with a notice that she was subject to removal from the United States because of the petit larceny conviction, “which is considered a crime of moral turpitude.” Later, she filed a habeas petition in this court seeking to have her conviction vacated based on ineffective assistance of counsel.

Analysis

Under the two prongs of Strickland v. Washington, 466 U.S. 668 (1984), to establish ineffective assistance of counsel, a petitioner must first show that counsel performed deficiently and then show resulting prejudice.

Petitioner has established the first prong. The basis for petitioner’s removal is the Immigration and Nationality Act, § 212(a)(2)(A)(i)(l). The statute provides that a crime of moral turpitude makes a non-citizen inadmissible. But there is a petty offense exception for a first-time moral turpitude offense that carries a one-year sentence or less, and where the actual sentence is not more than six months in jail.

The exception does not apply to petitioner because the actual sentence, whether imposed or suspended, was more than six months.

Counsel knew petitioner was not a United States citizen and knew she had been detained at the airport after arriving back from El Salvador. Had he made further inquiries about petitioner’s immigration status, or sought the assistance of an available immigration specialist, he would have learned that petitioner was not readmitted as a returning resident but instead was paroled for a deferred inspection. The application of § 212 of the INA would have been clear.

Counsel “mistakenly believed that the plea agreement he recommended would have no immigration consequences. As a result, he did not advise Petitioner of the likelihood of any adverse immigration consequences, nor did he advise her to consult with an immigration specialist. Trial counsel did not ask a Spanish interpreter to assist Petitioner when reviewing the plea for with her, and the record also suggests that trial counsel did not broach the subject of Petitioner’s immigration status with the prosecutor during plea negotiations.”

Petitioner has also established the second Strickland prong. She testified that she would have served an active jail term instead of accepting an agreement that made her inadmissible to the United States. Alternatively, she would have rejected the plea agreement. The court finds this testimony credible given that if removed, she would have to leave her daughter, who is a United States citizen, behind or take her with her to El Salvador.

The petition for a writ of habeas corpus is granted. Petitioner’s conviction is vacated.

Jurado-Alcantara v. Kinkaid. CL-2019-0001231, Oct. 24, 2019; Fairfax Cir. Ct. (Shannon). Barry A. Schneiderman for Petitioner, John C. Johnson for Respondent. VLW 019-8-096, 8 pp.