Araiza v. State.

481 P.3d 14, 149 Haw. 7

• Court: Hawaii Supreme Court
• Decided: January 26, 2021
• Docket: SCWC-17-0000695
• Status: Published

Opinion

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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, *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

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

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

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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