review from the Iowa Court of Appeals. Appeal from the Iowa
District Court for Tama County, Mary E. Chicchelly, Judge.
Morales Diaz seeks further review of a court of appeals
decision reversing the district court's grant of
postconviction relief. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AFFIRMED AND CASE REMANDED.
J. Miller, Attorney General, Kevin Cmelik and Sharon K. Hall,
Assistant Attorneys General, for appellant.
Vondra of Cole & Vondra, P.C., Iowa City, for appellee.
case, we consider the scope of an attorney's
responsibility to advise a client who is an unauthorized
alien in the United States of the immigration consequences of
pleading guilty to a criminal offense. The district court
held the attorney's advice was insufficient and ordered
the defendant, Roberto Morales Diaz, be allowed to withdraw
his plea. On appeal, we transferred the case to the court of
appeals. The court of appeals reversed, finding counsel had
no duty to provide specific advice on the immigration
consequences of pleading guilty. The court of appeals also
held Morales Diaz failed to show any deficiency of counsel
caused him prejudice. On further review, we vacate the court
of appeals and affirm the district court. We conclude Morales
Diaz's attorney failed in his duty to advise his client
of the direct and severe immigration consequences of pleading
guilty to the crime of aggravated misdemeanor forgery,
leading Morales Diaz to plead guilty and subject himself to
automatic and permanent removal. We remand this case for
Factual Background and Proceedings.
Morales Diaz began residing in the United States in 2002. He
entered this country without examination by the Department of
Homeland Security. Morales Diaz has a young daughter who is a
U.S. citizen. He was her primary caregiver until he was taken
into custody and removed to Mexico. Until this case, Morales
Diaz had no criminal record.
January 24, 2013, a City of Toledo police officer responded
to a report of a domestic disturbance. The mother of Morales
Diaz's daughter reported she felt threatened by Morales
Diaz during an argument. The altercation did not include
physical violence. The officer placed Morales Diaz in a squad
car and asked for identification. Morales Diaz produced a
Texas identification card bearing his name. The officer then
learned the identification number on the card was registered
to a different name. The officer also observed the card had
no security features. The officer decided to transport
Morales Diaz to the Toledo police station for further
station, the officer interrogated Morales Diaz with the aid
of an interpreter. The officer told Morales Diaz he was not
going to be arrested for the reported domestic disturbance,
but he was going to be questioned about the identification
card. Morales Diaz explained he obtained the card from an
office building in Houston he thought was the Texas
Department of Public Safety. He stated he paid $100 for the
card and was advised he could use it to operate a motor
vehicle and open bank accounts. The officer asked Morales
Diaz if he was in the United States legally. Morales Diaz
initially responded he legally immigrated to the United
States, but later admitted he was residing here without
authorization. After this admission, the officer placed
Morales Diaz under arrest. Morales Diaz continued to deny
knowledge of any illegality with the identification card. The
officer transported Morales Diaz to the county jail and
contacted Immigration and Customs Enforcement (ICE). ICE
began removal proceedings. The county attorney filed a trial
information charging Morales Diaz with forgery as a class
"D" felony under Iowa Code section
715A.2(1)(d) and (2)(a) (2013).
Diaz was released on bail. He retained counsel. The court
continued the state forgery proceedings against him several
times to give him time to resolve his federal immigration
status. On July 8, 2014, however, he failed to appear at an
immigration hearing in Omaha, Nebraska. He also failed to
appear at a scheduled plea hearing in Iowa state court. After
a Tama County court issued an arrest warrant, he turned
himself in and was held in the county jail.
Diaz's counsel visited him in jail. According to Morales
Diaz, his counsel gave him a written guilty plea to sign, but
did not advise him of any of the immigration consequences of
pleading guilty. According to his counsel, counsel advised
Morales Diaz that because he missed his immigration hearing
he was "probably going to be deported no matter what
happened." Counsel stated Morales Diaz responded that he
"just wanted to get this over with, " before he
signed the written plea of guilty to aggravated misdemeanor
forgery under Iowa Code section 715A.2(2)(b).
Consistent with the plea agreement, the court imposed a
two-year suspended sentence. Nevertheless, based on this
conviction, federal authorities subsequently removed him from
the United States to Mexico.
Diaz returned to the United States in Department of Homeland
Security custody and filed for postconviction relief in
district court. He asserted he was denied his right to the
effective assistance of counsel under the Sixth Amendment to
the U.S. Constitution. He argued his counsel should have
advised him that forgery under Iowa Code section
715A.2(2)(b) constituted an "aggravated
felony" under 8 U.S.C. § 1101(a)(43)(R) (2012). In
turn, he argued his counsel should have advised him that
pleading guilty to an aggravated felony has severe,
automatic, and irreversible immigration consequences,
including foreclosure of "cancellation of removal,
" a proceeding by which the Attorney General may adjust
the status of a removable alien to that of a lawful permanent
resident. See 8 U.S.C. § 1229b(b)(1)(C).
Additionally, he argued his counsel should have advised him
that his physical presence in the United States for more than
ten years and his good moral character would have allowed him
to seek this relief if he could establish his removal would
result in "exceptional and extremely unusual
hardship" to his daughter. Id. §
1229b(b)(1)(A)-(D). Because his counsel failed to advise him
of these immigration consequences of his plea, Morales Diaz
argued he should be allowed to withdraw his plea and defend
the charges at trial.
district court agreed and vacated his conviction. The court
found Morales Diaz's counsel had a duty to advise him of
the clear and foreseeable immigration consequences of
pleading guilty, not just that there was a possibility he
could be removed. It found Morales Diaz's counsel failed
to perform this duty and Morales Diaz could prove prejudice
because, based on his counsel's failure, he gave up his
right to a trial, which he would not have done had he known
that pleading guilty to forgery would permanently separate
him from his daughter.
State appealed, and the court of appeals reversed. The court
of appeals found counsel for Morales Diaz had no duty to
advise him of the specific immigration consequences of his
plea, and in the alternative, that he could not show he was
prejudiced by counsel's failure. We granted further
Standard of Review.
"[w]e typically review postconviction relief proceedings
on error, " we review ineffective-assistance-of-counsel
claims de novo. Ledezma v. State, 626 N.W.2d 134,
141 (Iowa 2001); see also State v. Schlitter, 881
N.W.2d 380, 388 (Iowa 2016).
"Ineffective-assistance-of-counsel claims require a
showing by a preponderance of the evidence both that counsel
failed an essential duty and that the failure resulted in
prejudice." Schlitter, 881 N.W.2d at 388.
right to counsel guaranteed by the Sixth Amendment to the
U.S. Constitution is a "right to the effective
assistance of counsel."Strickland v. Washington, 466 U.S.
668, 686, 104 S.Ct. 2052, 2063 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449
n.14 (1970)). This right is not limited to trial. Instead,
the Sixth Amendment right to counsel "at least"
extends to all critical stages of the prosecution after the
initiation of formal proceedings. See Rothgery v.
Gillespie County, 554 U.S. 191, 212, 128 S.Ct. 2578,
2591 (2008). Thus, the right to counsel plainly extends to
that critical stage of the prosecution in which a defendant
considers pleading guilty to the charges. See
McMann, 397 U.S. at 770-71, 90 S.Ct. at 1448-49.
Counsel's duty at this stage is no less important than it
is at trial. See Missouri v. Frye, 566 U.S. 133,
143-44, 132 S.Ct. 1399, 1407 (2012). It is a duty to provide
competent and thorough advice, to represent the client's
interests with vigor and diligence, and to fulfill those
"anxious responsibilities" with which we have
entrusted the bar. Schware v. Bd. of Bar
Exam'rs, 353 U.S. 232, 247, 77 S.Ct. 752, 760 (1957)
(Frankfurter, J., concurring). It is a duty that is embodied
in the very name the profession has appropriated: to counsel.
Moreover, it is a duty that exists separate from the colloquy
engaged in by the district court under Iowa Rule of Criminal
Procedure 2.8. See State v. Rhodes, 243 N.W.2d 544,
545 (Iowa 1976) ("The court's inquiry is intended to
supplement but not supplant advice of counsel.").
attorney fails to fulfill this duty when the attorney fails
to advise a client of the immigration consequences of a plea.
See Padilla v. Kentucky, 559 U.S. 356, 367-68, 130
S.Ct. 1473, 1482 (2010). Immigrant clients rely on criminal
defense counsel to advise them of immigration consequences
because these consequences are of great, even overwhelming,
importance to them. See id. at 368, 130 S.Ct. at
1483. Changes in immigration law have increased enforcement
and reduced discretion in the event of a criminal conviction.
See id. at 363- 64, 130 S.Ct. at 1480. These changes
have shifted the responsibility to protect immigrants from
potential inequities in the immigration system to criminal
defense counsel. See Christopher N. Lasch,
"Crimmigration" and the Right to Counsel at the
Border Between Civil and Criminal Proceedings, 99 Iowa
L. Rev. 2131, 2149-50 (2014); see also Andrés
Dae Keun Kwon, Comment, Defending Criminal(ized)
"Aliens" after Padilla: Toward a More
Holistic Public Immigration Defense in the Era of
Crimmigration, 63 UCLA L. Rev. 1034, 1057 (2016). In
response, many new resources have emerged to assist the
defense bar in this growing responsibility, including
quick-access charts, frequently asked questions and answers,
opportunities for legal training, and free consultations with
immigration experts. See Immigrant Def. Project,
Resources: Criminal Defense Attorneys,
(last visited June 2, 2017); Immigrant Legal Res. Ctr., Books
and Trainings, https://www.ilrc.org/store (last visited June
2, 2017); Nat'l Ass'n of Criminal Def. Lawyers,
Immigration Practice Advisories and Additional Res.,
visited June 2, 2017); Univ. of Iowa, Advanced Immigration
Law and Policy Project,
visited June 2, 2017);. As states and localities struggle to
define their role, desired or not, as partners in immigration
enforcement, see Ingrid V. Eagly, Immigrant
Protective Policies in Criminal Justice, 95 Tex. L. Rev.
245, 247 (2016), defense counsel must embrace his or her new
role as a "crimmigration" attorney, Juliet Stumpf,
The Crimmigration Crisis: Immigrants, Crime, and
Sovereign Power, 56 Am. U. L. Rev. 367, 381 (2006), if
counsel is to provide effective assistance.
establish counsel provided constitutionally deficient
representation, the defendant must establish counsel's
representation "fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688,
104 S.Ct. at 2064; see also State v. Clay, 824
N.W.2d 488, 495 (Iowa 2012). We look to "the practice
and expectations of the legal community" in defining
this standard. Padilla, 559 U.S. at 366, 130 S.Ct.
at 1482; see also Dempsey v. State, 860 N.W.2d 860,
868 (Iowa 2015). If the defendant makes the requisite showing
under this first prong, the defendant must then show that,
but for counsel's ineffective assistance, he or she
"would not have pleaded guilty and would have insisted
on going to trial." Hill v. Lockhart, 474 U.S.
52, 59, 106 S.Ct. 366, 370 (1985); see also State v.
Straw, 709 N.W.2d 128, 138 (Iowa 2006). This does not
mean the defendant must show he or she would ...