United States v. Rodriguez-Vega

• Decision Date: 14 August 2015
• Docket Number: No. 13–56415.,13–56415.
• Citation: 797 F.3d 781
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Elizabeth RODRIGUEZ–VEGA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

797 F.3d 781

UNITED STATES of America, Plaintiff–Appellee

v.Elizabeth RODRIGUEZ–VEGA, Defendant–Appellant.

No. 13–56415.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2015.

Filed Aug. 14, 2015.

Doug Keller (argued), Federal Defenders of San Diego, CA, for Defendant–Appellant.

Julia A. Cline (argued), Special Assistant United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Rebecca Sharpless, Immigration Clinic, University of Miami School of Law, Coral Gables, FL; Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, MA; Jeffrey L. Fisher, NACDL Amicus Committee, Stanford, CA; Manual D. Vargas and Dawn Seibert, Immigrant Defense Project, New York, NY, for Amici Curiae National Association of Criminal Defense Lawyers, National Association for Public Defense, National Immigration Project of the National Lawyers Guild, Immigrant Defense Project, and Immigrant Legal Resource Center.

Appeal from the United States District Court for the Southern District of California, William V. Gallo, Magistrate Judge, Presiding. D.C. Nos. 3:12–cv–01996–WVG, 3:12–cr–02053–WVG.

Before: STEPHEN REINHARDT, FERDINAND F. FERNANDEZ, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Elizabeth Rodriguez–Vega appeals the magistrate judge's denial of her 28 U.S.C. § 2255 petition¹ to vacate her conviction of misdemeanor Attempted Transportation of Illegal Aliens in violation of 8 U.S.C. § 1324(a)(2)(A). She asserts that she was deprived of effective assistance of counsel because her attorney failed to advise her that her plea agreement rendered her removal a virtual certainty, and that the court erred in dismissing her petition without holding an evidentiary hearing. We hold that the district court did not abuse its discretion in failing to conduct an evidentiary hearing, but that it did err in failing to hold that under the controlling law Rodriguez–Vega's counsel's assistance was ineffective. Accordingly, we order the conviction vacated.

I.

Rodriguez–Vega was born in Mexico in 1989. She came to the United States with her family when she was twelve years old, and became a lawful permanent resident the following year. In 2012, she was arraigned on an Information charging her with felony Attempted Transportation of Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II).

Rodriguez–Vega's attorney² initially presented her with a plea agreement requiring her to stipulate to removal following her criminal sentence. A section entitled “Stipulated Removal” provided that “[i]f defendant is not a United States citizen or national, ... defendant agrees to an order of removal from the United States” following completion of her criminal sentence, and “waives any right to appeal, reopen or challenge the removal order.” When Rodriguez–Vega rejected the agreement her attorney obtained a revised plea agreement that did not include the stipulation for removal upon completion of her sentence, reduced a $100 assessment to $25, and recommended a base offense level of 12 and downward departures of 2 points each for acceptance of responsibility and fast track. The revised plea replaced the stipulated removal provision with a provision entitled “Immigration Consequences,” stating that

Defendant recognizes that pleading guilty may have consequences with respect to her immigration status if she is not a citizen of the United States.... Defendant nevertheless affirms that she wants to plead guilty regardless of any immigration consequences that his [sic] plea may entail, even if the consequence is his [sic] automatic removal from the United States.

The final section of the plea stated that “Defendant has discussed the terms of this agreement with defense counsel and fully understands its meaning and effect.” Both plea agreements were to a reduced charge of misdemeanor Transportation of an Illegal Alien.³

Rodriguez–Vega pled guilty to a single misdemeanor. At her plea colloquy, the magistrate judge⁴ informed Rodriguez–Vega that “potentially you could be deported or removed, perhaps. ” (Emphasis added.) Later, at her sentencing hearing, Rodriguez–Vega's counsel, addressing the court, stated that “even though this is a misdemeanor, there is a high likelihood that she'll still be deported. It's still probably considered an aggravated felony for purposes of immigration law.” (Emphasis added.) The district court sentenced Rodriguez–Vega to 60 days in custody followed by one year of supervised release. Fifteen days later, Rodriguez–Vega was issued a Notice to Appear, alleging that she was removable because her conviction qualified as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).

Rodriguez–Vega filed a petition to vacate her conviction under 28 U.S.C. § 2255 on the ground that her counsel provided ineffective assistance by failing to adequately advise her regarding the immigration consequence of her plea. In the alternative, she requested that the court order an evidentiary hearing. In support of her petition, Rodriguez–Vega filed a declaration denying that her counsel ever told her that her plea would cause her to be removed.

The district court ordered an expansion of the record and supplemental briefing, and directed the government to file a declaration from Rodriguez–Vega's counsel. Her counsel stated in his declaration that

[p]rior to Ms. Rodriguez [sic] guilty plea I had several conversations with here [sic] regarding potential immigration consequences. I explained to Ms. Rodriguez that there was a potential to be deported based on her immigration status. I explained to Ms. Rodriguez that ... I believed she had a better chance with Immigration with a misdemeanor than a felony.

The district court denied the petition without holding any further hearing. It held that her counsel was required to advise his client only that her plea created a general risk of removal. The district court found this duty satisfied by his statement prior to Rodriguez–Vega's guilty plea that she faced a “potential” of removal, and by his statement at the sentencing hearing that she faced a “high likelihood” of removal. It also found that even assuming that counsel's performance was ineffective, Rodriguez–Vega was not prejudiced by that conduct. Rodriguez–Vega appeals.

II.

To prevail on her claim of ineffective assistance of counsel, Rodriguez–Vega must demonstrate that her attorney's representation “fell below an objective standard of reasonableness,” and that she suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A.

With respect to the ineffective performance prong, the district court erred because it applied the wrong legal standard. “When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). However, where the law is “succinct, clear, and explicit” that the conviction renders removal virtually certain, counsel must advise his client that removal is a virtual certainty. Id. at 368–69, 130 S.Ct. 1473 (“[W]hen the deportation consequence is truly clear, ... the duty to give correct advice is equally clear.”); United States v. Bonilla, 637 F.3d 980, 984 (9th Cir.2011) (“A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”) (emphasis in original).⁵

Where the immigration statute or controlling case law expressly identifies the crime of conviction as a ground for removal, “the deportation consequence is truly clear.” Padilla, 559 U.S. at 369, 130 S.Ct. 1473. Here, as in Padilla and Bonilla, the immigration statute expressly identifies Rodriguez–Vega's conviction as a ground for removal. See 8 U.S.C. §§ 1101(a)(43)(N), § 1227(a)(2)(A)(iii) ; see also Padilla, 559 U.S. at 368, 130 S.Ct. 1473 (“Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute”). Her conviction of a removable offense renders her removal “practically inevitable.” Padilla, 559 U.S. at 363–64, 130 S.Ct. 1473. Accordingly, we hold that Rodriguez–Vega's counsel was required to advise her that her conviction rendered her removal virtually certain, or words to that effect. See Bonilla, 637 F.3d at 984.

That Rodriguez–Vega might theoretically avoid removal under the family member exception for first-time offenders, see 8 U.S.C. § 1101(a)(43)(N), by receiving withholding of removal, see 8 U.S.C. § 1231(b)(3), or by qualifying for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c), does not alter our conclusion that on the record before us her removal was virtually certain.⁶

We also reject the government's arguments that counsel's performance was not ineffective because Rodriguez–Vega received notice that she might be removed from a provision in the plea agreement and the court's plea colloquy under Federal Rule of Criminal Procedure 11. The government's performance in including provisions in the plea agreement, and the court's performance at the plea colloquy, are simply irrelevant to the question whether counsel's performance fell below an objective standard of reasonableness. See Padilla, 559 U.S. at 371, 130 S.Ct. 1473 (quoting Hill v. Lockhart, 474 U.S. 52, 62, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (White, J., concurring in the judgment) (“It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the ...