Iowa Ct App: CIMT requires general advice under Padilla; cites me

The Court of Appeals of Iowa, the state’s intermediate appellate court, held that a conviction for an offense that would constitute a crime involving moral turpitude requires only general advice that adverse immigration consequences may result. Lopez-Penaloza v. State, No. 10-1205, slip op. (Iowa Ct. App. Sept. 8, 2011) (Eisenhauer, Doyle, and Mullins, JJ.). Judge Doyle wrote the panel’s decision.

This case involved an LPR who pleaded guilty to a state tampering with records offense. Lopez-Penaloza, No. 10-1205, slip op. at 2. “She asserts that when discussing immigration consequences, her counsel told her the plea offer was the ‘safest’ way to resolve the case, and he was unsure whether the guilty plea would lead to adverse immigration consequences because the plea did not constitute a felony conviction. The written guilty plea form advised Lopez-Penaloza ‘that a criminal conviction, deferred judgment, or deferred sentence may affect [her] status under federal immigration laws.’” Lopez-Penaloza, No. 10-1205, slip op. at 2 (citing Iowa R. Crim. P. § 2.8(2)(b)(3)).

Based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Lopez-Penaloza argued that her plea attorney “was required to inform her pleading guilty to that charge ‘would make her automatically deportable.’” Lopez-Penaloza, No. 10-1205, slip op. at 3.

The Iowa appellate court disagreed. It first explained that, according to Padilla, the first prong of the Strickland v. Washington, 466 U.S. 668 (1984), test for ineffective assistance of counsel requires asking “whether the failure to advise a defendant regarding the risk of deportation constitutes deficient performance.” Lopez-Penaloza, No. 10-1205, slip op. at 10. (I have discussed the Strickland test previously.) The Padilla Court set out a two-tiered test for determining what type of advice is required:

“When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.”

130 S. Ct. at 1483 (quoted in Lopez-Penaloza, No. 10-1205, slip op. at 10).

As an interesting aside, the court cited my explanation of Padilla’s two-tiered requirement in When State Courts Meet Padilla:

“[i]f deportation is clear, the right to effective assistance of counsel requires a defense attorney to affirmatively and accurately advise a non-citizen client about the likelihood of deportation. If it is not clear that deportation is going to result from a guilty plea, then the defense attorney’s obligation is measurably different: affirmatively advise the client about the possibility of ‘adverse immigration consequences.’”

César Cuauhtémoc García Hernández, When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions, 12 Loyola J. Public Interest Law 299, 309 (2011) (quoted in Lopez-Penaloza, No. 10-1205, slip op. at 11 n.5).

Lopez-Penaloza argued that “because the deportation consequences of her plea were ‘truly clear’…counsel needed to tell her that a conviction for tampering with records would result in automatic deportation.” Lopez-Penaloza, No. 10-1205, slip op. at 11. While the court agrees that an attorney must provide clear advice about deportation when deportation is clear from the statute, it disagrees that Lopez-Penaloza’s conviction falls within this category.

Instead, the court determines that Lopez-Penaloza’s tampering with records conviction “falls under the broad category of deportable offenses known as ‘crimes involving moral turpitude’.” Lopez-Penaloza, No. 10-1205, slip op. at 12. This notorious phrase—the bane of many immigration lawyers practice—is not straightforward. As the court explains, “in order to accurately advise Lopez-Penaloza about the deportation consequences of her plea, her counsel would have been  required, like we were, to step into the ‘labyrinth’ of immigration law.” Lopez-Penaloza, No. 10-1205, slip op. at 14 (quoting me again: García Hernández, 12 Loyola J. Public Interest Law at 308).

Given this ambiguity, the court concludes that the plea attorney was required only to provide general advice about the possibility of adverse immigration consequences: “Because the statutory provision governing the deportation consequences of Lopez-Penaloza’s guilty plea was not ‘succinct, clear, and explicit,’ we conclude defense counsel owed her the more limited duty of advising her ‘that pending criminal charges may carry a risk of adverse immigration consequences.’” Lopez-Penaloza, No. 10-1205, slip op. at 14-15 (quoting Padilla, 130 S. Ct. at 1483).

Accordingly, Lopez-Penaloza was not denied her Sixth Amendment right to counsel under Padilla.