Ex parte Rodriguez

• Citation: 378 S.W.3d 486
• Decision Date: 19 July 2012
• Docket Number: Nos. 04–11–00038–CR, 04–11–00039–CR.,s. 04–11–00038–CR, 04–11–00039–CR.
• Parties: Ex Parte Isabel RODRIGUEZ.
• Court: Court of Appeals of Texas

378 S.W.3d 486

Ex Parte Isabel RODRIGUEZ.

Nos. 04–11–00038–CR, 04–11–00039–CR.

Court of Appeals of Texas, San Antonio.

April 25, 2012.

Rehearing Overruled July 19, 2012.

Jorge G. Aristotelidis, De Mott, McChesney, Curtright & Armendariz, San Antonio, TX, for Appellant.

Jay Brandon, Assistant District Attorney, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by: REBECCA SIMMONS, Justice.

Appellant Isabel Rodriguez Campos pleaded nolo contendere to two misdemeanors in 1997. In late 2010, she applied for writs of habeas corpus to withdraw her pleas. She asserted that she received ineffective assistance of counsel in light of Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Specifically, Rodriguez complained that her plea counsel “failed to properly inform her on the certain and automatic immigration consequences of her guilty pleas.” In her sole issue on appeal, Rodriguez argues the trial court erred when it denied her applications. We affirm the trial court's order.

Background

In 1997, Rodriguez was a lawful permanent resident of the United States when she was arrested for two separate misdemeanors: theft by check and prostitution. The theft by check occurred in 1995 and the prostitution occurred in early 1997. Rodriguez was represented in both pleas by the same court-appointed counsel. Before Rodriguez pleaded, she signed written admonitions and the trial court orally admonished her that her pleas could adversely affect her immigration status. She pleaded nolo contendere to both charges and the court accepted her pleas.

On November 10, 2010, Rodriguez filed applications for writs of habeas corpus, supported by affidavits, and motions to withdraw her pleas. She asserted that (1) her plea counsel failed to warn her that she would be deported if she pleaded guilty to two misdemeanors, (2) his advice was constitutionally deficient, (3) she was prejudiced, and thus (4) her pleas were not knowing and voluntary. At the hearing on the applications for writs of habeas corpus no testimony or additional evidence was presented. In its December 16, 2010 order, the trial court found, inter alia, that (1) Rodriguez signed written admonitions and voluntarily waived her right to trial and (2) she understood her pleas could result in her deportation. It denied her applications; Rodriguez appeals the trial court's order.

Standard of Review

We review the trial court's denial of a habeas corpus application for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006). An applicant who asserts that her plea was not knowing and voluntary must prove her claim by a preponderance of the evidence. Id. We review “the record evidence in the light most favorable to the trial court's ruling and [we] must uphold that ruling absent an abuse of discretion.” Id. We give almost total deference to the trial court's findings that are “ ‘based upon credibility and demeanor.’ ” Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.2006) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex.Crim.App.2004)). We also defer to the trial court's findings of historical facts it determines from conflicting affidavits. Manzi v. State, 88 S.W.3d 240, 243–44 (Tex.Crim.App.2002) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

Relevant Immigration Laws

Padilla v. Kentucky addressed the requirements for effective assistance of counsel for a noncitizen defendant who enters a plea to a criminal charge if her deportation consequence is “truly clear.” See Padilla v. Kentucky, ––– U.S. ––––, ––––, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010). In Padilla, the defendant was a lawful permanent resident (LPR) of the United States for over forty years when he pleaded guilty to transporting a large amount of marijuana. Id. at 1477. Before he pleaded guilty, his plea counsel told Padilla “he did not have to worry about immigration status since he had been in the country so long.” Id. at 1478 (internal quotation marks omitted). Padilla relied on his plea counsel's affirmative misadvice and pleaded guilty. Id. at 1478, 1483. But the immigration statute's terms applicable to Padilla's offense were succinct, clear, and explicit: Padilla was deportable. Id. at 1483. Further, he was not eligible for discretionary relief. See id. at 1480. Thus, the outcome of his removal proceeding was not in question: he was deportable, he was not eligible for discretionary relief, and the immigration judge would order him deported. Because Padilla's deportation consequence was truly clear, his plea counsel's duty was to warn him that he would be deported. Id. at 1483. A mere warning of a risk of adverse immigration consequences would be constitutionally deficient. Id.

To determine whether Rodriguez received ineffective assistance of counsel, we must first decide whether the immigration consequences for her pleas were truly clear.¹Seeid. Like Padilla, Rodriguez was deportable; but unlike Padilla, Rodriguez was eligible for cancellation of removal. As discussed below, Rodriguez's immigration consequences turn on her removability and eligibility for cancellation of removal.

A. Removability1. Removable Persons

The Immigration and Nationality Act (INA) authorizes the Attorney General to order deported any alien who “is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii) (2006); see Amouzadeh v. Winfrey, 467 F.3d 451, 454 (5th Cir.2006). The INA does not define “moral turpitude,” but federal courts give substantial deference to the Board of Immigration Appeals' (BIA's) definition of the term. Fuentes–Cruz v. Gonzales, 489 F.3d 724, 725 (5th Cir.2007) (per curiam); Amouzadeh, 467 F.3d at 454. For the BIA's deportation determination purposes, theft and prostitution convictions in Texas are crimes involving moral turpitude. See generally Fuentes–Cruz, 489 F.3d at 726;Holgin v. State, 480 S.W.2d 405, 408 (Tex.Crim.App.1972) (prostitution involves moral turpitude); Brown v. Tex. Dep't of Ins., 34 S.W.3d 683, 690 (Tex.App.-Austin 2000, no pet.) (theft by check involves moral turpitude).

2. Rodriguez's Removability

Rodriguez pleaded nolo contendere to two separate misdemeanors: theft by check and prostitution. She asserts that both offenses are crimes involving moral turpitude; we agree. See Holgin, 480 S.W.2d at 408;Brown, 34 S.W.3d at 690. Therefore, Rodriguez was deportable. See8 U.S.C. § 1227(a)(2)(A)(ii); Amouzadeh, 467 F.3d at 454. However, some deportable aliens, like Rodriguez, are eligible for discretionary relief such as cancellation of removal.

B. Eligibility for Discretionary Relief1. Cancellation of Removal

Under the INA, the Attorney General has discretionary authority to cancel removal in some instances. 8 U.S.C. § 1229b(a) (2006); see Carachuri–Rosendo v. Holder, ––– U.S. ––––, ––––, 130 S.Ct. 2577, 2583, 177 L.Ed.2d 68 (2010); Mireles–Valdez v. Ashcroft, 349 F.3d 213, 214–15 (5th Cir.2003). An LPR who has been admitted for at least five years, who has continuously resided in the United States for seven years, and who has not been convicted of an aggravated felony—under the federal immigration law definition—may apply for cancellation of removal. 8 U.S.C. § 1229b(a) (2006); Carachuri–Rosendo, 130 S.Ct. at 2580–81. The LPR “bears the burden of demonstrating that his or her application for relief merits favorable consideration.” In re C–V–T, 22 I. & N. Dec. 7, 12 (BIA 1998); see8 C.F.R. § 1240.64(a) (2012). She may offer evidence, including “affidavits from family, friends, and responsible community representatives,” that show her good character and support her application. Matter of Marin, 16 I. & N. Dec. 581, 585 (BIA 1978). Factors that support cancellation of removal include the following:

family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, ... a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character.

In re C–V–T, 22 I. & N. Dec. at 11. Adverse factors include:

the nature and underlying circumstances of the grounds of exclusion or deportation (now removal) that are at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicativeof a respondent's bad character or undesirability as a permanent resident of this country.

Id. The immigration judge “ ‘must balance the adverse factors evidencing the [LPR]'s undesirability as a permanent resident with the social and humane considerations presented in his (or her) behalf to determine whether the granting of ... relief appears in the best interest of this country.’ ” Id. (quoting Marin, 16 I. & N. Dec. at 584–85) (omission in original). The immigration judge must “clearly enunciate the basis for granting or denying a request for cancellation of removal,” and the judge's decision is subject to administrative review by the Board of Immigration Appeals. See id. at 12, 15 (reversing the immigration judge's decision and granting cancellation of removal). However, there is no judicial review of “any judgment regarding the granting of [discretionary] relief under section ... 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i); Pinos–Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir.2008); see Delgado–Reynua v. Gonzales, 450 F.3d 596, 600 (5th Cir.2006).

2. Rodriguez's Eligibility for Cancellation of Removal

In its brief, the State asserted Rodriguez was eligible...