from the Iowa District Court for Marshall County, John J.
applicant appeals from the denial of his application for
postconviction relief. REVERSED AND REMANDED FOR FURTHER
Benjamin D. Bergmann and Alexander Smith of Parrish
Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann
L.L.P., Des Moines, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
Ramirez appeals from the district court's denial of his
application for postconviction relief (PCR). As he did in his
PCR application, Ramirez maintains he received ineffective
assistance from trial counsel. Specifically, he maintains
counsel was ineffective by failing (1) to ensure
Ramirez's written guilty pleas conformed to Iowa Rule of
Criminal Procedure 2.8(2)(b); (2) to advise him adequately of
the immigration consequences of his pleas; and (3) to
mitigate the immigration consequences. Alternatively, Ramirez
asks us to apply a new prejudice standard under the Iowa
Constitution if we find that Ramirez has failed to establish
prejudice under the well-known
Strickland standard or to determine the failure to
inform a defendant adequately of immigration consequences
constitutes "structural error, " allowing Ramirez
to succeed without having to establish how he was prejudiced.
Background Facts and Proceedings.
was born in the Dominican Republic in 1976. He immigrated to
the United States in 2003. At the time he was charged by
trial information, in October 2011, Ramirez was a legal
permanent resident of the United States and had been for a
number of years. Additionally, he had six
children who were either residents or citizens of
the United States.
was charged by trial information with two counts of child
endangerment, one count of harassment in the first degree,
and one count of domestic abuse assault causing bodily
injury. It was alleged Ramirez had hit his wife with a closed
fist-leaving a bruise on his wife's bicep-while she
changed the diaper of their two-year-old child. Then, after
his wife began packing a bag to leave the residence, Ramirez
laid on the couple's bed near their one-year-old child
while holding a knife and told his wife he would kill the
child before he let her leave with the children. His wife
reported Ramirez frequently told her he was going to kill
second trial information, Ramirez was also charged with one
count of child endangerment and one count of harassment in
the first degree. It was alleged Ramirez had struck his
two-year-old child and had again threatened to kill his wife.
2012, Ramirez entered a written guilty plea to two counts of
child endangerment and one count of domestic abuse causing
bodily injury; the State agreed to dismiss the other pending
charges. The written plea form contained the following
sentence, "I understand that a criminal conviction,
deferred judgment or deferred sentence will affect my status
under federal immigration law."
was sentenced to concurrent two-year sentences for each
conviction for child endangerment and a one-year sentence for
his conviction for domestic abuse assault. All but
seventy-five days of each sentence was suspended, which
Ramirez had discharged with time served before his guilty
did not appeal the judgment or sentence.
2014, Ramirez filed a timely petition for PCR. In his
petition, Ramirez claimed his trial counsel had provided
ineffective assistance when she failed to advise Ramirez of
potential deportation consequences of his guilty pleas.
petition was not heard until August 2016. At the hearing,
Ramirez called an immigration attorney, Nikki Mordini, as an
expert witness. Mordini testified as to the differences
between "removability"-when a person is subject to
being deported or ejected from the country-and
"inadmissibility"-when a person would be prevented
from legally reentering the country or, while still in the
United States, would become ineligible for certain types of
relief. While legal permanent residents may apply for
cancellation of removal-which allows for cancellation of the
removal process even after conviction of an otherwise
removable crime- anyone convicted of an aggravated felony (as
defined by the Immigration and Nationality Act) is ineligible
for the cancellation. Mordini testified aggravated felony
convictions are often referred to as "the death penalty
of immigration cases" because a conviction carries such
severe immigration consequences. While crimes involving moral
turpitude can be more ambiguous, crimes that constitute
aggravated felonies are listed in the statute. Additionally,
some crimes are considered aggravated felonies because of the
conduct or type of crime, such as situations where a crime
includes violence, and other crimes are considered aggravated
felonies because the non-citizen was sentenced to a term of
incarceration of one year or more.
was asked what she would tell a non-citizen client who was
pleading guilty to an aggravated felony about the immigration
consequences, and she stated, in part:
If it appears there were no options for avoiding the
aggravated felony, my advice to the client would be that you
will be removed. The aggravated felony means that you are
deportable. It means that once placed in deportation
proceedings that you are subject to mandatory detention,
which means that you are not eligible for a bond while the
deportation case is pending. An aggravated felony means that
if you're removed based on that aggravated felony that
you are permanently barred from returning to the U.S. It
means that you are permanently barred from becoming a U.S.
citizen, even if there's some way that you're able to
stay. And there are just-there are numerous consequences
based on that aggravated felony conviction. But first and
foremost is that you will be removed.
trial counsel was also called to testify at the PCR hearing.
At the hearing, she testified she told Ramirez in several
conversations he would or could be deported if he pled
guilty. Additionally, the ...