Araiza v. State. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
26-JAN-2021
08:22 AM
Dkt. 20 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
EDELMIRA SALAYES ARAIZA,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI,
Respondent/Respondent-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 14-1-0162; S.P.P. NO. 15-1-0007)
JANUARY 26, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE BROWNING, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Edelmira Salayes Araiza is a citizen of Mexico and a
lawful permanent resident (LPR) of the United States. She has
lived in Hawaiʻi for more than twenty-two years and has two
children, both of whom were born in the United States. In 2014,
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Araiza pleaded no contest in the Circuit Court of the Second
Circuit to Theft in the First Degree, an aggravated felony under
federal immigration law, 8 U.S.C. § 1101(a)(43), and to Welfare
Fraud. Her attorney advised her that pleading no contest would
make deportation “almost certain,” but that “[his office] had
criminal defendants who were convicted of felonies who are not
automatically deported” because immigration was “handled by
federal authorities who do not oversee state courts.”
Here, we are asked to determine whether counsel
properly advised his client, Araiza, about the consequences of
an aggravated felony conviction. We hold he did not. In order
to be effective under the United States and Hawaiʻi
Constitutions, criminal defense attorneys must advise their
clients about adverse immigration consequences that may result
from a plea of guilty or no contest. Haw. Const. art. I, § 14;
Padilla v. Kentucky, 559 U.S. 356, 368 (2010). Despite her
attorney’s reference to deportation being “almost certain,” when
taken as a whole, his advice conveyed that there was a realistic
possibility Araiza would not be deported. In reality, Araiza
was precluded from discretionary relief from deportation because
of her conviction. Budziszewski v. Comm’r of Corr., 142 A.3d
243, 251 (Conn. 2016) (“If counsel gave the advice required
under Padilla, but also expressed doubt about the likelihood of
enforcement, the court must also look to the totality of the
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immigration advice given by counsel to determine whether
counsel’s enforcement advice effectively negated the import of
counsel’s advice required under Padilla about the meaning of
federal law.” (emphasis added)). Araiza is therefore entitled
to relief.
In light of our resolution of this issue, we decline
to determine whether the Intermediate Court of Appeals (ICA)
erred on the other points of error raised by Araiza. 1 However,
we offer guidance on one of those issues relating to
qualifications of interpreters. When a lower court appoints an
interpreter who has not been certified by the judiciary as
proficient in the applicable foreign language, it must conduct a
brief inquiry to establish that the interpreter is qualified, as
required by Hawaiʻi Rules of Evidence (HRE) Rules 604 and 702,
and the Hawaiʻi Rules for Certification of Spoken-Language
Interpreters (HRCSLI).
II. BACKGROUND
In March 2014, the State charged Araiza with Theft in
the First Degree in violation of Hawai‘i Revised Statutes (HRS)
§ 708-830.5(1)(a) (2014) and with Welfare Fraud in violation of
1 On appeal, Araiza raised four additional issues: (1) her defense
attorney provided ineffective assistance of counsel by failing to negotiate
an immigration-safe plea; (2) the circuit court’s plea colloquy was
insufficient under State v. Ernes, 147 Hawaiʻi 316 (2020); (3) her Rule 40
counsel had been ineffective; and (4) the circuit court committed plain error
by appointing an unqualified interpreter for the Rule 40 hearing.
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HRS § 346-34(b) and/or (c) (2015), alleging she had failed to
report income, which resulted in a substantial overpayment of
Supplemental Nutrition Assistance Program (SNAP) benefits over
the course of several years. Araiza had no prior experience
with the criminal justice system.
At her arraignment, the circuit court 2 advised Araiza
pursuant to HRS § 802E-4 (2014) 3: “[Y]our case may have severe
and irreversible [immigration] consequences, including immediate
detention, deportation or exclusion from admission or denial
[of] naturalization to the United States. Your attorney must
advise you regarding the possible consequences this case may
have on your immigration status.”
2 The Honorable Rhonda I.L. Loo presided over Araiza’s circuit
court proceedings including her arraignment, no contest plea, and Rule 40
petition.
3 HRS § 802E-4 provides:
At the commencement of the court session for arraignment
and plea hearings for an offense punishable as a crime
under state law, except offenses designated as infractions
under state law, the court shall administer the following
advisement on the record to all defendants present:
If you are not a citizen of the United States,
whether or not you have lawful immigration status,
your case may have severe and irreversible
consequences, including immediate detention,
deportation, or exclusion from admission or denial of
naturalization to the United States. Your attorney
must advise you regarding the possible consequences
this case may have on your immigration status. You
are not required to disclose your immigration or
citizenship status to the court.
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A. Araiza’s No Contest Plea
On October 10, 2014, Araiza, who was represented by a
deputy public defender (trial counsel), pleaded no contest to
both charges and moved for a deferred acceptance of her plea.
The plea paperwork, which Araiza and her attorney both signed,
specified, “[T]his document has been read to me or has been
interpreted for me.” It also contained an advisement about
immigration consequences:
If I am not a citizen of the United States, whether or not
I have lawful immigration status, I have the right to
receive advice from my lawyer about the specific impact
that this case will have, if any, on my immigration status.
The entry of a guilty or nolo contendre (no contest)
plea, . . . may have the consequences of my immediate
detention, deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the
laws of the United States. In some case[s], detention and
deportation from the United States will be required. My
lawyer must investigate and advise me about the
aforementioned issues prior to . . . entry of a guilty or
nolo contendere (no contest) plea . . . and I acknowledge
that I have been so advised. I am not required to disclose
my immigration or citizenship status to the court.
(Emphasis added).
The circuit court also read Araiza the immigration
advisement from her plea paperwork, informing her that her plea
“may have the consequences of your immediate detention,
deportation[,] . . . [e]xclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the
United States,” and that “[y]our lawyer must investigate and
advise you about these issues prior to the . . . entry of a
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guilty or no contest plea.” 4 Araiza told the court she did not
need additional time to consider her plea, and that she had
discussed immigration consequences with her attorney and was
satisfied with his advice. Accordingly, the circuit court found
she “voluntarily entered a plea of no contest, with the
understanding of the nature of the charges and the consequences
of her plea.”
4 Like the circuit court’s advisement at Araiza’s arraignment, this
advisement was required by statute. HRS § 802E-2 (2014) provides:
Prior to the commencement of trial, entry of a plea of
guilty or nolo contendere, or admission of guilt or
sufficient facts to any offense punishable as a crime under
state law, except offenses designated as infractions under
state law, the court shall administer the following
advisement on the record to the defendant:
If you are not a citizen of the United States,
whether or not you have lawful immigration status,
you have the right to receive advice from your
attorney about the specific impact that this case
will have, if any, on your immigration status. The
entry of a guilty or nolo contendere plea, admission
of guilt or sufficient facts, or conviction, deferred
judgment, or deferred sentence may have the
consequences of your immediate detention,
deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the
laws of the United States. In some cases, detention
and deportation from the United States will be
required. Your lawyer must investigate and advise
you about these issues prior to the commencement of
trial, entry of a guilty or nolo contendere [plea],
or admission of guilt or sufficient facts to any
offense punishable as a crime under state law, other
than those offenses designated as infractions. You
are not required to disclose your immigration or
citizenship status to the court.
Upon request, the court shall allow the defendant
additional time to consider the appropriateness of the plea
in light of the advisement as described in this section.
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The circuit court subsequently denied Araiza’s motion
for a deferral and sentenced her to five years of probation on
Count One (Theft in the First Degree), and one year of probation
on Count Two (Welfare Fraud), with both terms of probation to
run concurrently. Araiza did not appeal her conviction.
Four months later, the U.S. Department of Homeland
Security detained Araiza without bond and served her with a
Notice to Appear, alleging that she was removable because her
conviction for Theft in the First Degree was an aggravated
felony conviction.
B. Rule 40 Petition
1. Rule 40 Petition and Hearing
Five months after Araiza’s conviction, Araiza filed a
Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40 petition, 5
5 HRPP Rule 40 provides in relevant part:
(a) Proceedings and Grounds. The post-conviction
proceeding established by this rule shall encompass all
common law and statutory procedures for the same purpose,
including habeas corpus and coram nobis; provided that the
foregoing shall not be construed to limit the availability
of remedies in the trial court or on direct appeal. Said
proceeding shall be applicable to judgments of conviction
and to custody based on judgments of conviction, as
follows:
(1) From Judgment. At any time but not prior to final
judgment, any person may seek relief under the
procedure set forth in this rule from the judgment of
conviction, on the following grounds:
(continued . . .)
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asserting that her trial counsel’s failure to advise her of
immigration consequences constituted ineffective assistance of
counsel and, in turn, prevented her no contest plea from being
knowing and intelligent.
Initially, the circuit court summarily denied Araiza’s
Rule 40 petition without a hearing, finding that her claim of
ineffective assistance of counsel had been waived because she
failed to raise it on appeal, and that Araiza had not been
convicted of an aggravated felony, so “the consequences
resulting from [Araiza’s] plea were truly unclear.” But the ICA
reversed and explained that “[c]ontrary to the Circuit Court’s
assumption, []Araiza’s conviction for first-degree theft by
deception in violation of HRS § 708-830.5(1)(a) is an aggravated
felony under the immigration laws.” Salayes-Araiza v. State,
No. CAAP-XX-XXXXXXX, 2016 WL 6948461, at *4 (Haw. App. Nov. 28,
2016). Accordingly, citing Padilla, the ICA concluded that
Araiza’s “petition sufficiently stated a colorable claim for
relief” and remanded for a hearing. Id. at *5.
(i) that the judgment was obtained or sentence
imposed in violation of the constitution of the
United States or of the State of Hawai‘i;
(ii) that the court which rendered the judgment
was without jurisdiction over the person or the
subject matter;
(iii) that the sentence is illegal;
(iv) that there is newly discovered evidence;
or
(v) any ground which is a basis for collateral
attack on the judgment.
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At the hearing on remand, the parties stipulated to
admitting State’s Exhibit 1, Araiza’s trial counsel’s
declaration. Araiza’s trial counsel stated in his declaration
that he discussed immigration consequences with Araiza:
[N]early every conversation with my client centered on
immigration concerns, the looming and almost-certain
possibility that she’d be deported, and the difficulty in
presenting a defense in this case due to the language
barrier, the severity of the charge, and the State’s
evidence, and I remember that she burst into tears or
became teary-eyed anytime I brought up this topic, which
was every discussion we had prior to pre-trial.
Trial counsel also advised Araiza and her husband that
a plea of guilty or no contest “would result in an almost-
certain deportation,” and he strongly advised them to speak to
an immigration attorney. However, he also explained that
sometimes defendants convicted of felonies were not deported:
As part of this discussion, I informed her that I had
discussed this issue with more senior attorneys in my
office, and discovered that there were situations in our
own office where people who were found guilty of felony
offenses were actually not deported, despite their
convictions, and for that reason I could not give her 100%
confirmation that she’d be automatically deported for the
very reason that the immigration is handled by Federal
authorities who do not oversee the State courts and that
certain defendants seemed to slip through the grasp of what
would [] otherwise be an automatic deportation.
(Emphases added).
Overall, trial counsel advised Araiza that she needed
to weigh “risking automatic deportation with no jail (upon a
plea agreement) versus going to trial and possibly being found
guilty, serving jail and then being deported (which would be far
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worse)[.]” 6
During the Rule 40 hearing, trial counsel testified on
behalf of the State. Consistent with his declaration, trial
counsel testified that he advised Araiza she would be subject to
almost-certain deportation if convicted. Deportation was not
certain because his office “had criminal defendants who were
convicted of felonies who are not automatically deported.”
When pressed about his advice on cross-examination,
trial counsel conceded he did not know, and had never advised
Araiza, that state criminal records were automatically forwarded
to Immigration and Customs Enforcement. Moreover, trial counsel
did not tell Araiza she would be automatically detained after
her plea, even though he knew that that would happen and had
advised her she would not go to jail if she pleaded no contest.
Trial counsel also admitted that he did not tell
Araiza that her conviction would be for an “aggravated felony,”
or that a conviction for an aggravated felony precluded any
6 Trial counsel also stated in his declaration that he had wanted
to negotiate a dismissal if Araiza could raise “the full amount of
restitution money,” but that Araiza and her husband were unable to do so.
When he learned they did not have the money,
I again explained that there could be immigration
consequences, especially with a Theft in the First Degree
conviction, and that deportation would be almost certain if
convicted or put on probation. I again proposed that we
could just take our chances at trial and try for an
acquittal and [Araiza] indicated she did not want to risk
losing at trial and again was very emotional during the
conversation.
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possible relief from removal. Although he did not tell Araiza
she was pleading to an “aggravated felony,” he testified that he
told her it was “a more serious felony,” and explained “the
difference between a Class B and a Class C [felony.]”
When asked, he also said that he knew that someone
deported for an aggravated felony would never be able to
naturalize, but that he did not tell Araiza that: “I didn’t go
through the specifics of the law because almost certain
deportation, a reasonable inference would be that once you’re
deported, you’re not allowed to come back. But that’s why I
also requested that she seek the advice of an immigration
attorney.”
When Araiza’s attorney explained that inadmissibility
and inability to naturalize were two different things, trial
counsel conceded he did not advise Araiza of either consequence.
Trial counsel testified that he was not aware of
Padilla, and that he never contacted immigration attorneys about
his cases “because of client confidentiality,” even though the
public defender’s office “encouraged us to contact immigration
attorneys personally.” Finally, when asked if he had a duty to
research immigration consequences, he replied, “I believe that
this is an issue that keeps on coming up in courts and that
keeps on changing, especially with the presidency. . . . Back
then I didn’t believe I had the duty to know immigration law as
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much as an immigration attorney.”
Araiza herself also testified at the hearing. She
testified that she had lived in Hawai‘i for twenty-two years.
She was married and had two children, both born in the United
States. She had a green card — and therefore was an LPR — and
had hoped to become an American citizen.
Araiza did not know what an aggravated felony was, and
she testified that trial counsel had not advised her about
possible immigration consequences: 7
What I’m seeing, that he wanted to finish the case fast,
because he told me to plead guilty, to just get an
agreement; that I had to give $3,000; I was going to -- I
was not going to go to jail; I was going to get an approval
for five years [deferral]; and that I should continue with
the payments; and that everything was going to be all
right. So I felt relaxed on that sense.
When asked if she would have gone to trial had she
known about the immigration consequences of her plea, Araiza
replied, “I would have gone and fight.”
Araiza used a Spanish-speaking interpreter during the
Rule 40 hearing. Almost as soon as the hearing began, the
circuit court interrupted the proceedings to instruct the
interpreter twice that “[e]verything [Araiza] says you need to
translate for us.” Shortly after the first witness began
7 Araiza testified that trial counsel had not given her any legal
advice, but immediately went on to explain the non-immigration legal advice
he had given her.
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testifying, the circuit court interrupted again to ask if the
interpreter was “getting all this,” to which the interpreter
responded, “No. . . . [I’m] getting a little behind. But I’m
getting the whole idea.” The court said, “No,” and the
interpreter said, “I can only translate ideas, no words.”
During Araiza’s testimony, the court again instructed the
interpreter to translate everything Araiza said. However, when
asked if Araiza wanted a different interpreter, Araiza’s
attorney said, “No.”
2. The Circuit Court’s Findings of Facts and Conclusions
of Law
The circuit court denied Araiza’s Rule 40 petition in
a written order filed on September 6, 2017. The circuit court
found trial counsel credible and that he had advised Araiza a no
contest plea or guilty conviction “would result in an almost
certain deportation, but could not provide 100% confirmation
that [Araiza] would be deported.” The court also noted that it
had advised Araiza that her case could have immigration
consequences and that her attorney must advise her about them.
By contrast, the circuit court found Araiza’s “claims that
[trial counsel] did not give her any legal advice, including any
advice pertaining to possible immigration consequences, are not
credible.”
Accordingly, the circuit court found that trial
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counsel “adequately advised [Araiza] of the possible immigration
and/or deportation consequences of her no contest pleas.” The
court further concluded that Araiza “had a full understanding of
what her no contest pleas connoted, [and] their direct
consequences; and therefore, [Araiza’s] no contest pleas were
knowingly, intelligently, and voluntarily entered.”
In sum, the circuit court concluded “in light of all
the circumstances, [Araiza] has failed to meet her burden of
demonstrating that her counsel’s performance was not objectively
reasonable,” and that “there were specific errors or omissions
reflecting her counsel’s lack of skill, judgment, or diligence.”
The circuit court therefore “conclude[d] that [Araiza] was not
provided ineffective assistance of counsel under the State of
Hawai‘i or United States Constitutions[.]”
B. ICA Memorandum Opinion
Araiza appealed to the ICA, arguing that the circuit
court erred in concluding that trial counsel did not provide
ineffective assistance of counsel by providing deficient
immigration advice 8 and, for the first time on appeal, that the
circuit court did not provide Araiza with a qualified
interpreter during her Rule 40 hearing.
8 Araiza also argued in her Rule 40 petition and application for
writ of certiorari that she was prejudiced by trial counsel’s advice because
she would not have pleaded no contest had she known that deportation was
mandatory. The State did not dispute this argument.
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The ICA affirmed the circuit court’s denial of
Araiza’s Rule 40 petition. First, the ICA held that the circuit
court’s factual finding that trial counsel advised Araiza she
faced “almost-certain deportation” was not clearly erroneous
because it was supported by evidence in the record and was based
on the court’s credibility assessment.
With respect to the sufficiency of trial counsel’s
immigration advisement, the ICA decided that “the Supreme Court
has not consistently characterized the immigration consequence
of an aggravated felony conviction” and therefore “has not made
it clear whether the immigration consequence for an aggravated
felony is absolute or qualified.” The ICA conducted its own
analysis of the consequences of an aggravated felony.
First, it held that the statutory language in 8 U.S.C.
§ 1227(a)(2)(A)(iii) and 8 U.S.C. § 1228(c) regarding aggravated
felonies “does not support Araiza’s argument” because it “does
not state that deportation is automatic, mandatory, or certain.”
Second, the ICA concluded that removal is not
automatic because “[t]here are also administrative proceedings
and limited judicial review available,” since immigration judges
conduct removal proceedings. While the ICA recognized that
federal courts have no appellate jurisdiction over final orders
of removal where the basis for removal was an aggravated felony
conviction, the ICA concluded that since federal courts retain
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jurisdiction over questions of law, “even when removal
proceedings are initiated, the result is not always automatic
deportation.”
Third, quoting Chacon v. State, 409 S.W.3d 529, 537
(Mo. Ct. App. 2013), the ICA held that “Padilla does not require
that counsel use specific words to communicate to a defendant
the consequences of entering a plea.” And it cited several
decisions from state and federal courts that approved of
qualifying language such as “virtual certainty” or “almost
certainly will.” Thus, “[t]rial counsel was not ineffective
when he provided Araiza with correct advice, informing her that
deportation was ‘almost certain’ if she pleaded no contest.”
Finally, the ICA held that the circuit court did not
plainly err by failing to provide Araiza with a qualified
interpreter based on the presumption that an interpreter acted
regularly in the course of their duty. The ICA observed that
Araiza did not prove the interpreter had not been certified when
the Rule 40 hearing occurred in June 2017, and that there is no
requirement an interpreter be formally certified, nor that a
trial court “express[ly]” find an interpreter to be qualified.
Thus, the ICA affirmed the circuit court’s order in
its entirety. Araiza timely filed an application for writ of
certiorari.
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III. STANDARDS OF REVIEW
A. Ineffective Assistance of Counsel
“The proper standard for claims of ineffective
assistance of counsel on appeal is whether, ‘viewed as a whole,
the assistance provided was within the range of competence
demanded of attorneys in criminal cases.’” State v. DeLeon, 131
Hawai‘i 463, 479, 319 P.3d 382, 398 (2014) (quoting Dan v. State,
76 Hawai‘i 423, 427, 879 P.2d 528, 532 (1994)).
The defendant has the burden of establishing ineffective
assistance of counsel and must meet the following two-part
test: 1) that there were specific errors or omissions
reflecting counsel’s lack of skill, judgment, or diligence;
and 2) that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially
meritorious defense.
Id. at 478–79, 319 P.3d at 397–98 (quoting State v. Wakisaka,
102 Hawai‘i 504, 514, 78 P.3d 317, 327 (2003)).
Unlike the federal standard, defendant need only show
“a possible impairment, rather than a probable impairment, of a
potentially meritorious defense. A defendant need not prove
actual prejudice.” Id. at 479, 319 P.3d at 398 (quoting
Wakisaka, 102 Hawai‘i at 514, 78 P.3d at 327).
B. Court Interpreters
The court has discretion to appoint an “interpreter of
its own selection[.]” HRPP Rule 28(b). Under HRE Rule 604,
interpreters must be qualified to the same extent as an expert
witness pursuant to HRE Rule 702. Thus, as with an expert
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witness, a trial court’s determination whether a witness is
qualified to be an interpreter is reviewed for abuse of
discretion. HRE Rule 604 cmt. (“Under Hawaii law, preliminary
determination of [an interpreter’s] qualifications is a matter
within the discretion of the court[.]”).
IV. DISCUSSION
A. Araiza’s Trial Counsel Provided Inadequate Immigration
Advice
According to trial counsel’s own testimony, 9 he gave
Araiza three pieces of advice regarding immigration
consequences: (1) a no contest plea would result in “almost
certain deportation,” but that (2) his office has had defendants
“convicted of felonies who are not automatically deported,” and
that (3) “immigration is handled by federal authorities who do
not oversee state courts[.]” He told Araiza, in sum, that she
needed to weigh “risking automatic deportation” as the result of
a plea, versus “going to trial and possibly being found
guilty . . . and then being deported[.]”
The ICA decided trial counsel’s advisement satisfied
his professional duty to advise Araiza about the immigration
consequences of her no contest plea. For the following reasons,
9 The circuit court found trial counsel credible, and the ICA
appropriately held that the circuit court’s finding regarding trial counsel’s
credibility was not clearly erroneous because there was evidence in the
record to support it.
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we disagree.
1. The Right to Immigration Advice
Under Padilla, the sixth amendment of the United
States Constitution guarantees a defendant the right to receive
immigration advice from their defense attorney. 559 U.S. at 368(mandating advice where “the terms of the relevant immigration
statute are succinct, clear, and explicit in defining the
removal consequence for [the defendant’s] conviction”). Such
advice is necessary to “ensure that no criminal defendant —
whether a citizen or not — is left to the ‘mercies of
incompetent counsel.’” Id. at 374.
This same right can be independently found in article
I, section 14 of the Hawai‘i Constitution since, “under Hawaii’s
Constitution, defendants are clearly afforded greater protection
of their right to effective assistance of counsel.” State v.
Aplaca, 74 Haw. 54, 67 n.2, 837 P.2d 1298, 1305 n.2 (1992).
We note that the Hawai‘i Legislature has also
acknowledged that such advice is constitutionally required.
Indeed, it enacted HRS § 802E-4 and amended HRS § 802E-2 to
“conform [the statutes] to current federal court holdings,”
including Padilla, and to ensure a defendant is “adequately
advise[d] . . . of the defendant’s Sixth Amendment right to
competent and specific advice on immigration consequences of a
criminal conviction.” S. Stand. Comm. Rep. No. 1376, in 2013
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Senate Journal, at 1518.
Thus, by statute, the court must inform defendants
that their attorneys will “investigate and advise” them about
“the specific impact” the case will have on their immigration
status, including “[1] detention, [2] deportation, [3] exclusion
from admission to the United States, or [4] denial of
naturalization pursuant to the laws of the United States.” HRS
§§ 802E-2, 802E-4. Further, the court has to tell defendants
that their attorney must advise them whether “detention and
deportation from the United States will be required.” HRS
§ 802E-2.
Accordingly, under Padilla, and independently, under
article I, section 14 of the Hawai‘i Constitution, defense
counsel must adequately advise their clients regarding the
immigration consequences of a plea. The failure to do so
renders counsel’s advice deficient under the United States and
Hawai‘i Constitutions.
2. The Immigration Consequences of an Aggravated Felony
Conviction
Trial counsel’s advice to Araiza did not capture the
severity of a plea to an aggravated felony. See Sessions v.
Dimaya, 138 S. Ct. 1204, 1211 (2018) (“[R]emoval is a virtual
certainty for an alien found to have an aggravated felony
conviction, no matter how long [she] has previously resided
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here.”). Araiza’s conviction for Theft in the First Degree
constitutes an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(M)(i) (“[A]n offense that . . . involves fraud or
deceit in which the loss to the victim or victims exceeds
$10,000[.]”). “Aggravated felony” is a term of art: 8 U.S.C.
§ 1101(a)(43) lists twenty-one categories of offenses that
constitute aggravated felonies, and any immigrant convicted of
an aggravated felony “shall . . . be removed.” 8 U.S.C.
§ 1227(a) (emphasis added).
Trial counsel explained that he told Araiza she was
pleading to a “more serious felony,” and explained the
difference between class B and class C felonies. But contrary
to trial counsel’s apparent belief, the term “aggravated felony”
does not include all serious felonies, and designation as an
aggravated felony does not depend on the class of felony. Lopez
v. Gonzales, 549 U.S. 47, 59-60 (2006) (holding that the
“aggravated felony” classification turns on analogies to federal
law and noting that state misdemeanors can constitute aggravated
felonies).
The consequences of an aggravated felony conviction
are well-documented. See, e.g., Richard D. Steel, Steel on
Immigration Law § 13:16 (2020 ed.); Kathy Brady, Practice
Advisory: Aggravated Felonies, Immigrant Legal Resource Center
(Apr. 2017), https://perma.cc/N3WM-97W7. And Congress has made
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it clear that “a listed offense should lead to swift removal, no
matter whether it violates federal, state, or foreign law.”
Torres v. Lynch, 136 S. Ct. 1619, 1627 (2016).
Such a conviction makes an immigrant removable (i.e.,
deportable) under 8 U.S.C. § 1227(a)(2)(A)(iii), and unlike
other grounds of removability, anyone convicted of an aggravated
felony is “conclusively presumed to be deportable” under 8
U.S.C. § 1228(c). Removal is considered mandatory because 8
U.S.C. § 1227(a) provides that an immigrant falling under one of
the listed categories “shall” be removed. Further, an
aggravated felony conviction makes an immigrant ineligible for
relief from removal, including cancellation of removal, 8 U.S.C.
§ 1229b(a)(3), adjustment of status, 8 U.S.C. § 1229b(b)(1)(C),
asylum, 10 8 U.S.C. § 1158(b)(2)(B)(i), or voluntary departure, 11 8
U.S.C. § 1229c(a)(1). See Lopez, 549 U.S. at 50–51 (discussing
these consequences).
In addition, an aggravated felony conviction reduces
an immigrant’s procedural protections during removal
10 Additionally, a conviction for an aggravated felony is grounds
for termination of asylum status. 8 U.S.C. § 1158(c)(2)(B).
11 “Voluntary departure” means choosing to leave voluntarily in lieu
of being removed. 8 U.S.C. § 1229c(a)(1). It enables immigrants to avoid
certain grounds for inadmissibility that are contingent on having been
deported for a crime. See 8 U.S.C. § 1182(a)(9)(A)(i). However, because it
is not available to an immigrant convicted of an aggravated felony, it is
impossible for someone with this type of conviction to avoid becoming
permanently inadmissible after removal.
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proceedings. They are subject to mandatory detention without
bond. 8 U.S.C. § 1226(c)(1)(B); Demore v. Kim, 538 U.S. 510,
517–18 (2003) (“Section 1226(c) mandates detention during
removal proceedings for a limited class of deportable aliens —
including those convicted of an aggravated felony.”). But see
Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir. 2013)
(holding a bond hearing must be held once detention lasts more
than six months). Further, immigrants convicted of an
aggravated felony are subject to expedited removal proceedings
and, under certain circumstances, can be deported without a
hearing before an immigration judge. 8 U.S.C. § 1228(b); see
also Richard D. Steel, Steel on Immigration Law § 14:5 (2020
ed.).
Finally, the immigration consequences of an aggravated
felony conviction go beyond removal: Such a conviction makes an
immigrant permanently inadmissible, 8 U.S.C. § 1182(a)(9)(A)(i),
and precludes that person from ever becoming an American
citizen. Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172 (9th Cir.
2018) (holding aggravated felony conviction makes an immigrant
“permanently ineligible for naturalization”). 12
12 Advice about these consequences is required by HRS § 802E-2, and at
least one state has held that defense attorneys are constitutionally
obligated to advise defendants of all clear statutory consequences of a plea,
including inadmissibility and ineligibility for naturalization, noting that
(continued . . .)
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Thus, trial counsel’s advice to Araiza on the nature
of the felony to which she pleaded no contest failed to convey
that “aggravated felony” is a term of art connoting severe and
permanent consequences.
3. Inconsistencies between the ICA’s Analysis and
Existing Federal Law
The ICA concluded that because the Supreme Court has
not “made it clear whether the immigration consequence for an
aggravated felony conviction is absolute or qualified,”
deportation was not “certain” given the statutory language and
procedural protections available. This analysis is in tension
with existing federal law.
First, it is true that the Supreme Court sometimes
uses qualifying language with respect to an aggravated felony
conviction. E.g., Dimaya, 138 S. Ct. at 1211 (“virtual
certainty”); Chaidez v. United States, 568 U.S. 342, 352 (2013)
(“nearly an automatic result”). But the Court has not qualified
the magnitude of risk a criminal defendant must understand when
contemplating a plea to an aggravated felony. In Padilla, the
defendant pleaded guilty to transporting a large quantity of
marijuana. 559 U.S. at 359. The Supreme Court recognized that
his plea “made his deportation virtually mandatory,” and
doing so is the “prevailing professional norm[]” for criminal defense
attorneys. Diaz v. State, 896 N.W.2d 723, 730-31 (Iowa 2017) (citing ABA
standards).
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therefore held that “constitutionally competent counsel would
have advised him that his conviction for drug distribution made
him subject to automatic deportation.” Id. at 359-60 (emphases
added).
More recently, in Lee v. United States, 137 S. Ct.
1958, 1968–69 (2017), the Supreme Court considered the
significance of knowing deportation was “certain” versus “almost
certain.” In Lee, the defendant pleaded guilty to an aggravated
felony after his attorney failed to advise him of immigration
consequences, which the Court explained made the defendant
subject to “mandatory deportation.” Id. at 1963. The
government conceded that Lee’s attorney had been deficient but
argued that Lee had not been prejudiced because he had no viable
defense for trial. Id. at 1964. The Supreme Court rejected
that argument, holding that while the difference between
“certain” and “almost certain” deportation may seem slight, a
defendant concerned about immigration consequences should know
that deportation is “certain” because it may affect their
decision:
But for his attorney’s incompetence, Lee would have known
that accepting the plea agreement would certainly lead to
deportation. Going to trial? Almost certainly. If
deportation were the “determinative issue” for an
individual in plea discussions, as it was for Lee; if that
individual had strong connections to this country and no
other, as did Lee; and if the consequences of taking a
chance at trial were not markedly harsher than pleading, as
in this case, that “almost” could make all the difference.
Id. at 1968–69.
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Thus, the ICA’s conclusion that “the Supreme Court has
not consistently characterized this immigration consequence of
an aggravated felony conviction,” overlooks the Court’s clear
admonition that defendants must know if a plea will “certainly
lead to deportation.” Id.Second, the ICA’s conclusion that “[t]he relevant
statutory language [in 8 U.S.C. § 1227(a)(2)(A)(iii)] does not
state that deportation is automatic, mandatory, or certain,”
conflicts with the plain language of the statute and
misapprehends the meaning of “deportable.” An earlier section
of 8 U.S.C. § 1227 provides that “deportable” means an immigrant
“shall . . . be removed.” 8 U.S.C. § 1227(a); see also Padilla,
559 U.S. at 368-69 (explaining removal is “presumptively
mandatory” because “the text of the statute . . . specifically
commands removal”); Encarnacion v. State, 763 S.E.2d 463, 465
(Ga. 2014) (“The [Immigration and Nationality Act] . . . defines
‘deportable’ to mean that the alien is subject to mandatory,
rather than discretionary, removal. . . . Thus, the applicable
federal statutes make it clear that a conviction for an
aggravated felony automatically triggers the removal consequence
and almost always leads to deportation.” (citations omitted)).
Consequently, the ICA’s reading of the statute puts Hawai‘i at
odds with other jurisdictions’ interpretations of “shall” in 8
U.S.C. § 1227.
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Third, the ICA concluded removal is not automatic
because “[t]here are . . . administrative proceedings and
limited judicial review available to defendants convicted of an
aggravated felony making deportation or removal less than
automatic,” citing 8 U.S.C. § 1229a(a)(1) (an immigration judge
(IJ) conducts proceedings deciding removability). This is
incorrect: While an IJ conducts most removal proceedings, they
do not necessarily conduct expedited removal proceedings for
aggravated felonies, which are governed by 8 U.S.C. § 1228, not
8 U.S.C. § 1229a. Moreover, under 8 U.S.C. § 1228, immigrants
who are not LPRs or who have conditional LPR status can be
removed automatically without a hearing. 8 U.S.C. § 1228; see
also Richard D. Steel, Steel on Immigration Law § 14:5 (2020
ed.).
Accordingly, the ICA’s reasoning is erroneous. We now
address what immigration advice a defense attorney must convey
to their clients to provide effective assistance of counsel
under the United States and Hawai‘i Constitutions.
4. In Order to be Effective, a Criminal Defense Attorney
Must Accurately Convey that Deportation will be
“Required”
In assessing the sufficiency of a defense attorney’s
immigration advice, the court must determine whether the advice
given accurately conveys the legal consequences of a plea and
the magnitude of the risk. United States v. Bonilla, 637 F.3d
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980, 984 (9th Cir. 2011). Rather than focusing solely on the
defense attorney’s specific wording, “the focus of the court’s
inquiry must be on the essence of the information conveyed to
the client to ensure that counsel clearly and accurately
informed the client of the immigration consequences under
federal law in terms the client could understand.”
Budziszewski, 142 A.3d at 250.
Even technically-accurate immigration advice can be
deficient if the advice as a whole “understates the likelihood
that [a defendant] would be removed.” United States v.
Rodriguez-Vega, 797 F.3d 781, 791 (9th Cir. 2015); Encarnacion,
763 S.E.2d at 466 (“In light of [the defendant’s] conviction for
an aggravated felony, defense counsel had no reason to believe
there was a realistic probability that his client would escape
deportation. It follows that defense counsel performed
deficiently by failing to advise petitioner that he would be
deported as a result of his guilty plea[.]” (emphasis added));
see also State v. Blake, 132 A.3d 1282, 1292 (N.J. Super. Ct.
App. Div. 2016) (“[A]n attorney may fail to provide effective
assistance if he or she minimizes the risk of removal, and
thereby misleads a client.”).
When defense counsel tells a defendant they might not
be deported despite being removable, the Connecticut Supreme
Court has set forth a two-step test:
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First, the court must determine whether counsel complied
with Padilla by explaining to the client the deportation
consequences set forth in federal law. The advice must be
accurate, and it must be given in terms the client could
comprehend. If the petitioner proves that counsel did not
meet these standards, then counsel’s advice may be deemed
deficient under Padilla. If counsel gave the advice
required under Padilla, but also expressed doubt about the
likelihood of enforcement, the court must also look to the
totality of the immigration advice given by counsel to
determine whether counsel’s enforcement advice effectively
negated the import of counsel’s advice required under
Padilla about the meaning of federal law.
Budziszewski, 142 A.3d at 251.
In Budziszewski, the defense attorney customarily
advised his noncitizen clients that “if the law is strictly
enforced, it will result in deportation, but it’s been my
experience that the law is not strictly enforced. So you take a
chance.” 13 Id. at 247 (alterations omitted). The Connecticut
Supreme Court explained that “counsel is not required to provide
the client with predictions about whether or when federal
authorities will apprehend the client and initiate deportation
proceedings,” but that if counsel does give such advice,
“counsel must still impress upon the client that once federal
authorities apprehend the client, deportation will be
practically inevitable under federal law.” Id. at 250-51.
13 The Connecticut Supreme Court remanded the case for a new hearing
because while the attorney testified to “his usual practice,” “[t]he habeas
court made no findings of fact regarding what [the attorney] actually told
the petitioner about what federal law mandated or what [the attorney] might
have stated about the likelihood of enforcement.” Budziszewski, 142 A.3d at
247, 251. The court also noted that “there was no separate consideration by
the habeas court about whether counsel’s advice regarding enforcement negated
the import of counsel’s advice about what federal law mandated regarding
deportation.” Id. at 251.
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Other states have similarly recognized that while
there is no magic phrase an attorney must use, “[c]ounsel . . .
was obligated to provide to his client, in language that the
client could comprehend, the information that presumptively
mandatory deportation would have been the legal consequence of
pleading guilty.” Commonwealth v. DeJesus, 9 N.E.3d 789, 795
(Mass. 2014). In DeJesus, the Massachusetts Supreme Judicial
Court found advice that the defendant would “face deportation”
and would be “eligible for deportation” insufficient because it
did not advise the defendant “that all of the conditions
necessary for removal would be met by the defendant’s guilty
plea, and that, under Federal law, there would be virtually no
avenue for discretionary relief once the defendant pleaded
guilty and that fact came to the attention of Federal
authorities.” Id. at 796; see also Diaz v. State, 896 N.W.2d
723, 732 (Iowa 2017) (finding ineffective assistance of counsel
where “counsel never mentioned the crime constituted an
aggravated felony, and never attempted to explain the sweeping
ramifications of that classification” (citations omitted)).
Further, HRS § 802E-2 requires a trial court to advise
defendants that they have the “right” to be given specific
immigration advice and that their attorney “must investigate and
advise” them if their plea would mean that “detention and
deportation from the United States will be required.” HRS
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§ 802E-2 (emphasis added); see In re Yung-Cheng Tsai, 351 P.3d
138, 143 (Wash. 2015) (explaining that the “plain language” of
Washington’s immigration-advisement statute establishes an
“unequivocal” right to immigration advice).
Here, we hold that under the United States and Hawaiʻi
Constitutions, Araiza received inadequate immigration advice to
meet the requirements of effective assistance of counsel. That
counsel used the phrase “almost certain deportation” does not
end the inquiry; trial counsel’s statements must be considered
as a whole. “[A]lmost certain deportation” was not the extent
of his advice — he also downplayed the severity of the risk of
deportation by telling Araiza that his office had seen
defendants convicted of felonies who were not deported and that
immigration officials do not know about state court proceedings.
These statements were very similar to the advice at issue in
Budziszewski, and we find them concerning for the same reason as
the Connecticut Supreme Court: The combined effect was to convey
that deportation was very likely if Araiza pleaded no contest —
and possibly more likely if she went to trial — but that there
was a realistic possibility she would not be deported because it
had not happened to other similarly-situated defendants.
Indeed, the equivocal nature of trial counsel’s advice is
evident from the fact that he told her a plea was “risking
automatic deportation,” whereas being found guilty after a trial
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meant she would be deported.
These statements failed to accurately convey the
serious legal consequence of Araiza’s plea: “that all of the
conditions necessary for removal would be met by the defendant’s
guilty plea, and that, under Federal law, there would be
virtually no avenue for discretionary relief[.]” DeJesus, 9
N.E.3d at 796; Encarnacion, 763 S.E.2d at 466 (“In light of [the
defendant’s] conviction for an aggravated felony, defense
counsel had no reason to believe there was a realistic
probability that his client would escape deportation.”).
Moreover, since Araiza’s plea paperwork (and the
court’s later oral advisement) informed her that trial counsel
had to tell her if detention and deportation would be
“required,” trial counsel’s advice that deportation was “almost”
certain because some defendants were not deported created a
misleading impression that deportation was not legally required.
See Bonilla, 637 F.3d at 984–85 (concluding lawyer’s omission
could mislead defendant into believing there would not be
adverse immigration consequences).
While the ICA is correct that, as noted in Chacon, 409
S.W.3d at 537, “Padilla does not require that counsel use
specific words to communicate to a defendant the consequences of
entering a guilty plea,” HRS § 802E-2 promises that defense
attorneys will advise their clients if “detention and
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deportation from the United States will be required.” Indeed,
the ICA’s holding that trial counsel did not need to advise
Araiza that deportation was “automatic, mandatory, or certain”
renders HRS § 802E-2’s requirement meaningless. Accordingly, we
hold that defense attorneys must advise their clients using
language that conveys that deportation “will be required” by
applicable immigration law for an aggravated felony conviction.
Since Araiza’s trial counsel failed to adequately advise Araiza
of the immigration consequences of her plea, the circuit court
erred in concluding he provided her effective assistance of
counsel.
B. When a Trial Court Appoints an Interpreter who has not been
Certified by the Judiciary, the Court Must Conduct a Brief
Inquiry on the Record to Establish that the Interpreter is
Qualified
Araiza alleges that the circuit court plainly erred
during her Rule 40 hearing by appointing an interpreter who,
according to Araiza, was not “certified and/or qualified.”
Nothing in the record demonstrates the interpreter’s
qualifications. It appears Araiza’s interpreter was neither a
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certified 14 interpreter nor a registered 15 interpreter for the
Judiciary when the Rule 40 hearing was held in June 2017. While
we decline to decide whether the appointment of this interpreter
constituted plain error in light of our disposition of this
case, we offer some guidance on the procedures needed to ensure
an interpreter is qualified.
“All persons involved in proceedings before the Hawai‘i
State Courts, regardless of literacy or proficiency in the
English language, have the right to equal access to the courts
and to services and programs provided by the Hawai‘i State
Courts.” HRCSLI Rule 1.2. 16 A trial court has the discretion to
appoint an interpreter “of its own selection.” HRPP Rule 28(b).
And HRCSLI Rule 14.1 does not require formal certification, only
that an interpreter be qualified under court rules.
14 “Certified” means that the interpreter has passed the applicable
language exam from the National Center for State Courts. Hawai‘i’s Office of
Equality and Access to the Courts (OEAC) uses six tiers of designation for
interpreters that range from “registered” to “certified master.” In order to
be deemed “certified” (tier 4), the interpreter must receive a score of 70%
on the exam. To be a “certified master” (tier 6), the interpreter must
receive 80% on the exam. Right now, there is no tier 5 designation for
spoken-language interpreters. HRCSLI Appendix A.
15 “Registered” means that a person has fulfilled the minimum
requirements necessary to be on the list of interpreters for the judiciary.
In order to be registered, the lowest available tier, an interpreter must
pass a written English proficiency test and an ethics exam, attend a 2-day
basic orientation workshop, and pass a criminal background check. However,
proficiency in the foreign language is not assessed. HRCSLI Appendix A.
16 In March 2019, this court ordered that the previous version of
these rules, the Hawaiʻi Rules for Certification of Spoken and Sign Language
Interpreters, be vacated and replaced with the HRCSLI, effective July 2019.
This change did not affect the substance of the relevant rules.
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In 1995, the Chief Justice adopted policies for
interpreted proceedings in the state courts, which were
incorporated into the HRCSLI as Appendix B. As relevant here,
section I(D) governs qualifications of interpreters and provides
that if an interpreter is not on the list of recommended
interpreters, the court must conduct an inquiry:
Courts should use interpreters who can (a) understand terms
generally used in the type of proceeding before the court,
(b) explain these terms in English and the other language
being used, and (c) interpret these terms into the other
language being used. If a list of recommended interpreters
is not available, or if it appears an interpreter cannot
understand or interpret the terms used in the proceeding,
the judge should conduct a brief examination of the
interpreter to determine if the interpreter is qualified to
interpret the proceeding. When conducting the examination
the judge should, if possible, seek the assistance of an
interpreter whose qualifications have been established.
HRCSLI Appendix B, § I(D) (emphases added).
HRCSLI Appendix B comports with the HRE, which
establishes that an interpreter is regarded as an expert under
HRE Rule 702 “for the purpose of determining his qualifications
to interpret or to translate in the matter at issue.” HRE Rule
604 cmt. In other words, in accordance with HRE Rule 702, there
must be evidence in the record that the interpreter was
“qualified as an expert by knowledge, skill, experience,
training, or education.” The commentary to HRE Rule 604 notes
that the rule is identical to the Federal Rules of Evidence Rule
604.
If an interpreter has been certified by the judiciary,
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there is often no need for the court to conduct an inquiry
because the interpreter has already been qualified through
“training and education.” 17 27 Charles Alan Wright, Arthur R.
Miller & Victor J. Gold, Federal Practice & Procedure § 6054 (2d
ed. 2020) (“As a practical matter, however, a court usually need
not exercise its power to reexamine the qualifications of a
certified interpreter.”). However, when an interpreter has not
been certified, some other kind of foundation of their
qualifications must be established: “Rule 604 does not establish
a specific procedure for the courts to follow in determining
interpreter qualifications. One way or the other, however, the
record must reflect that the individual in question had the
requisite ability to interpret.” Id.
Accordingly, we hold that, if a court appoints an
interpreter who is not certified by the judiciary as proficient
in the foreign language, the court “should conduct a brief
examination of the interpreter to determine if the interpreter
17 Because registered interpreters are not assessed for language
proficiency, that designation may be insufficient to demonstrate expert
qualifications under HRE Rules 604 and 702. Similarly, certification in the
applicable foreign language may be insufficient if the party needing an
interpreter speaks a different dialect: “[W]here a language features multiple
dialects, an interpreter certified for that language might not be
sufficiently fluent in the specific dialect employed by a given witness. In
such a case, the certified interpreter would not qualify as an expert under
Rule 702[.]” 27 Charles Alan Wright, Arthur R. Miller & Victor J. Gold,
Federal Practice & Procedure § 6054 (2d ed. 2020) (footnote omitted).
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is qualified to interpret the proceeding.” HRCSLI Appendix B,
§ I(D).
V. CONCLUSION
For the reasons set forth in this opinion, we vacate
the ICA’s April 23, 2020 judgment on appeal and the circuit
court’s findings of fact, conclusions of law, and order denying
petitioner’s petition to vacate, set aside or correct illegal
sentence through a writ of habeas corpus pursuant to HRPP Rule
40 filed on September 6, 2017, and remand to the circuit court
for further proceedings consistent with this opinion.
Hayden Aluli /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Mark R. Simonds /s/ Sabrina S. McKenna
for respondent
(Peter A. Hanano /s/ Michael D. Wilson
on the brief)
/s/ R. Mark Browning
37