Rousan v. State
| Decision Date | 03 August 2020 |
| Docket Number | A20-0040 |
| Parties | Emad Gh Al Rousan, petitioner, Appellant, v. State of Minnesota, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Ramsey County District Court
Christian R. Peterson, Christian R. Peterson Law Office, Maple Grove, Minnesota (for appellant)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Lyndsey M. Olson, City Attorney, Steven Heng, Assistant City Attorney, St. Paul, Minnesota (for respondent)
Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Jesson, Judge.
UNPUBLISHED OPINION
Appellant challenges the district court's denial of his petition for postconviction relief and his motion to withdraw his guilty plea, arguing that he received ineffective assistance of counsel concerning the immigration consequences of pleading guilty. We affirm.
On November 9, 2017, appellant Emad Gh Al Rousan pleaded guilty to misdemeanor violation of an order for protection (OFP) that prohibited him from calling his wife. See Minn. Stat. § 518B.01, subd. 14(b) (2016). At the plea hearing, the district court asked whether Rousan had enough time to discuss the case with his attorney. Rousan responded that he had. When questioned by his attorney, Rousan confirmed that he had gone through the plea petition "line-by-line" with her. The plea petition contained a clause that read, "I understand that if I am not a citizen of the United States, my plea of guilty to this crime may result in deportation, exclusion from admission to the United States or denial of naturalization as a United States citizen." The plea petition also stated that Rousan had fully discussed his constitutional rights with his attorney. Rousan's attorney signed the plea petition indicating that she "personally explained the contents of the . . . petition to [Rousan]" and Rousan confirmed that he signed the petition with the intent to plead guilty.
Neither Rousan's attorney, the prosecutor, nor the district court inquired about whether Rousan had been advised about the immigration consequences of pleading guilty. After Rousan provided a factual basis to support his plea stating that he had called his wife in violation of the OFP, the district court found that Rousan had made a knowing, intelligent, and accurate waiver of his rights, and that the factual basis supported the plea. The district court deferred acceptance of the plea until sentencing. On January 11, 2018,the district court accepted Rousan's guilty plea and sentenced him to 90 days in jail, stayed for one year, and placed him on probation for one year.
On January 22, 2019, Rousan was discharged from probation. On September 11, 2019, Rousan filed a petition for postconviction relief, or in the alternative, a motion to withdraw his guilty plea. Rousan claimed that he was entitled to postconviction relief because his counsel failed to advise him of immigration consequences.
Rousan filed a supporting affidavit stating that he was born in Jordan in 1968, he came to the United States in 2010 as a permanent lawful resident, he was not a U.S. citizen, his attorney never asked him about his immigration status nor "explained that there would be immigration consequences," and he would not have pleaded guilty had he known about the immigration consequences. Rousan stated that as a result of pleading guilty, an immigration judge had ordered his deportation on July 26, 2019.
On December 12, 2019, the district court summarily denied Rousan's requested relief. The district court determined that because the plea petition and transcript from the plea hearing established that Rousan's attorney had advised him that pleading guilty may result in deportation, his counsel was effective because he was not convicted of an offense that would result in automatic deportation. This appeal followed.
Rousan challenges the district court's summary denial of his petition for postconviction relief, arguing that he was entitled to relief because his counsel did not advise him regarding the immigration consequences of his plea.
In reviewing a district court's denial of a petition for postconviction relief, this court reviews the district court's factual findings for clear error, its legal conclusions de novo, and its decision whether to grant relief for an abuse of discretion. Sanchez v. State, 890 N.W.2d 716, 719-20 (Minn. 2017). To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984).
"The objective standard of reasonableness is defined as representation by an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." State v. Vang, 847 N.W.2d 248, 266-67 (Minn. 2014) (quotations omitted). There is a strong presumption that counsel's performance was reasonable. Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016). When one prong of the Strickland test is determinative, an appellate court does not need to address the other prong. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires counsel to inform a noncitizen defendant about the immigration consequences of a guilty plea, including deportation. 559 U.S. 356, 374, 130 S. Ct. 1473, 1486 (2010). The Minnesota Supreme Court has summarized an attorney's obligation as follows:
Padilla establishes that criminal-defense attorneys must take some affirmative steps before allowing a noncitizen client to accept a plea deal. First, at a minimum, an attorney must review the relevant immigration statutes to determine whether a conviction will subject the defendant to a risk of removal from the United States. Second, if conviction of the charged offense clearly subjects the defendant to removal from the United States, the attorney has a constitutional obligation to advise the defendant of this fact before he or she enters a guilty plea. If it does not, then a general advisory warning about the possible immigration consequences of a guilty plea is sufficient.
In denying Rousan's postconviction petition, the district court relied on its determination that Rousan's conviction for violation of an OFP would not result in certain deportation. Rousan contends that the removal consequences as a result of pleading guilty to Minn. Stat. § 518B.01, subd. 14(b), were clear and thus his counsel's general advice about potential immigration consequences was not reasonable.
The Immigration and Nationality Act (INA) provides that a permanent resident is removable if "the court determines [they have] engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued." 8 U.S.C. § 1227(a)(2)(E)(ii) (2012). While the issue of whether the immigration consequences of pleading guilty to violation of an OFP pursuant to Minn. Stat. § 518B.01, subd. 14(b), are truly clear has not been squarely addressed in Minnesota, other jurisdictions have addressed this issue.
In State v. Ramos-Curiel, the Washington Court of Appeals considered whether a defendant received ineffective assistance of counsel when his attorney failed to advise him that his guilty plea to a violation of a domestic-violence no-contact order would result in certain deportation under the INA. No. 49048-0-II, 2017 WL 4005142, *2 (Wash. Ct. App. Sept. 12, 2017), review denied (Wash. Aug. 8, 2018).
Our review of federal caselaw leads us to the conclusion that the immigration consequences of Rousan's guilty plea were not truly clear. Notably, the language of 8 U.S.C.A. § 1227(a)(2)(E)(ii) requires an immigration court to make certain determinations about the nature of the protective order and the alien's conduct. See Garcia-Hernandez v. Boente, 847 F.3d at 872 ( ). This required determination does not make it so that an alien convicted of an OFP violation is clearly subjected to deportation. Therefore, despite the lack of plea-hearing inquiry regarding immigration consequences, the general immigration advisory in the plea petition—which Rousan...
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