STATE of Utah, Plaintiff and Appellee, v. Maricela AGUIRRE-JUAREZ, Defendant and Appellant.
No. 20111059-CA.
Court of Appeals of Utah.
Sept. 11, 2014.
2014 UT App 212 | 335 P.3d 896
Sean D. Reyes, Andrew F. Peterson, and Jacob S. Taylor, for Appellee.
Judge J. FREDERIC VOROS JR. authored this Amended Memorandum Decision, in which Judges JAMES Z. DAVIS and JOHN A. PEARCE сoncurred.
Amended Memorandum Decision1
VOROS, Judge:
¶ 1 Maricela Aguirre-Juarez, who is not a U.S. citizen, was prosecuted for identity fraud in Utah. The State alleged that she used fraudulent papers to obtain employment. On advice of counsel, she рled guilty to one count of class A attempted identity fraud. On appeal, Aguirre-Juarez contends that her counsel performed deficiently because the 364-day sentence he bargained for renders her permanently inadmissible to the United States under a federal statute. The State responds that her counsel‘s performance was not deficient, but that even if it was, she suffered no prejudice, because a different federal statute renders her permanently inadmissible to the United States in any event. We agree and affirm on that basis.2
¶ 2 Aguirre-Juarez used a “fake green card,” another person‘s Alien Registration Numbеr, and another person‘s social security number to obtain a job in Utah. The State charged Aguirre-Juarez with two third-degree-felony counts of identity fraud. As part of a plea bargain, the State dismissed one cоunt and reduced Aguirre-Juarez‘s other count to attempted identity fraud, a class A misdemeanor.3
¶ 3 At Aguirre-Juarez‘s plea hearing, both counsel noted that her plea could have immigration consequencеs. The prosecutor stated, “I do wish to put on the record that the defendant is not a United States citizen, and I do want to make sure she is aware that this plea could have immigration consequences....” Aguirrе-Juarez‘s counsel responded, “Certainly. We have discussed that very carefully, and ... she understands the consequences [of signing the plea deal].” Once she pled guilty, Aguirre-Juarez could have been deported regardless of her sentence, because the Immigration and Nationality Act (INA) classifies as deportable any alien convicted of a crime of moral turpitude “for which a sentence of one year or longer may be imposed.”
¶ 4 But Aguirre-Juarez‘s counsel believed that deportation would be less likely if she avoided a one-year sentence. He thus requested a 364-day sentence rather than the 365-day sentence the prosecutor requested. The district court imposed a 364-day sentence and a $200 fine. Aguirre-Juarez had already served fourteen days. The district court suspended the remaining 350 days and released Aguirre-Juarez.
¶ 5 Though both parties еxpected a guilty plea to carry deportation consequences, apparently neither foresaw that the plea could
¶ 6 On appeal, Aguirre-Juarez contends that the Sixth Amendment entitled her to an attorney aware of this subsection of the Act and capable of nеgotiating a plea bargain to circumvent it. In determining a claim of ineffective assistance of counsel raised for the first time on appeal, “we must decide whether [the] defendant was deprived оf the effective assistance of counsel as a matter of law.” State v. Tennyson, 850 P.2d 461, 466 (Utah Ct.App.1993); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶ 7 Strickland v. Washington and Padilla v. Kentucky control. Strickland provides the two-part framework for ineffective-assistance-of-counsel claims:
A convicted defendant‘s claim that cоunsel‘s assistance was so defective as to require reversal ... has two components. First, the defendant must show that counsel‘s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.
466 U.S. 668, 687 (1984). Padilla applies Strickland‘s deficient-performance prong in the context of deportation. When the “deportation consequence” of a defendant‘s plеa or conviction “is truly clear,” counsel‘s “duty to give correct advice is equally clear.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). But the Supreme Court, acknowledging that “[i]mmigration law can be complex,” also concluded that there will “undоubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” Id. In those cases, counsel‘s duty “is more limited“: “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. Thus, to satisfy Strickland in a deportation context, an attorney who is not “well versed” in immigration law need only “say something about the possibility of deportation.” Id. at 369 & n. 10.
¶ 8 A court applying Strickland may begin by addressing either prong: deficient performance or prejudice. Id. at 697. “If it is easier to dispose of an ineffeсtiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” Id.; see also, e.g., State v. Harris, 2012 UT 77, ¶¶ 31-34, 289 P.3d 591. Because it is easier to dispose of Aguirre-Juarez‘s ineffectiveness claim on the ground of lack of suffiсient prejudice, we follow that course here. Strickland, 466 U.S. at 697.
¶ 9 Aguirre-Juarez contends that she was prejudiced by her counsel‘s plea advice because he advised her to accept a plea that included 364 days of jail time. Had she received a sentence of six months or less, she argues, she would not be barred from re-entry into the United States under INA section 1182(a)(2)(A)(i). That subsection declares inadmissible “any alien convicted of ... acts which constitute the essential elements of ... a crime involving moral turpitude.”
¶ 10 Crimes of fraud, such as the one Aguirre-Juarez pled guilty to, involve moral turpitude. Jordan v. De George, 341 U.S. 223, 227-28 (1951). Aguirre-Juarez‘s 364-day sentence thus makes her inadmissible under section 1182(a)(2)(A)(i). However, as Aguirre-Juаrez contends, had she received a sentence of six months or less, the moral-turpitude provision would not have barred her re-entry into the U.S.
¶ 12 INA section 1182(a)(6)(C) declares inadmissible “[a]ny alien who, by fraud or willfully misrepresenting a matеrial fact, seeks to procure ... a visa, other documentation, or admission into the United States or other benefit provided under this Act.”
¶ 13 Section 1324a prohibits the hiring of unauthorized aliens.
¶ 14 The State‘s analysis finds support in federal case law. The few federal courts to consider the issue have concluded that fraudulent use of section 1324a dоcumentation to obtain employment constitutes an “other benefit” under chapter 12. For example, in Jaen-Chavez v. United States Attorney General, 415 Fed.Appx. 964, 969 (11th Cir.2011), the Eleventh Circuit Court of Appeals held that a noncitizen‘s use of a false social security сard to fill out an I-9 employment form constitutes the receipt of an “other benefit” under section 1182(a)(6)(C).4 Similarly, in Ighekpe v. Gonzales, No. 3-05-CV-0479-P, 2005 WL 1421396, at *2 (N.D.Tex., June 16, 2005), a federal district court adopted a magistrate‘s conclusion that a noncitizen making a “false statement of citizenship on an I-9 form for the purpose of obtaining employment” has received an “other benefit” under section 1182(a)(6)(C)(i).
¶ 15 As in Ighekpe, the purpose of Aguirre-Juarez‘s identity fraud was to оbtain employment. Under the foregoing federal case law, the “other benefits” section of the INA, section 1182(a)(6)(C)(i), would thus prevent Aguirre-Juarez from re-entering the United States even if the “moral turpitude” sectiоn, section 1182(a)(2)(A)(i)(I), did not.
¶ 16 Accordingly, even if trial counsel had sought a six-month sentence, and the prosecutor had recommended it, and the trial court had followed that recommendation, we cannot аgree that Aguirre-Juarez would today be eligible to re-enter the United States. Consequently, Aguirre-Juarez cannot demonstrate prejudice, and her Sixth Amendment claim fails.
¶ 17 Affirmed.