Court Finds Immigration Ineffectiveness: Rodriguez

Rodriguez was charged by a grand jury with conspiracy to distribute and possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. 846, 841(a)(1). Rodriguez agreed to plead guilty to the conspiracy charge pursuant to a plea agreement. As is typical, the plea agreement contained a broad appeal waiver that stipulated Rodriguez would not file an appeal or a 2255 motion attacking his conviction or sentence. The plea agreement further noted that Rodriguez recognized that by pleading guilty, his immigration status may result in removal from the United States.

At Rodriguez’ change of plea hearing, the district judge stated that removal was “a possible consequence” of Rodriguez’ guilty plea. Acknowledging this statement, Rodriguez entered his guilty plea and was ultimately sentenced to 12 months and one day imprisonment and 60 months of supervised release.

Rodriguez subsequently filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 alleging three claims of ineffective assistance of counsel: Rodriguez claimed that his attorney (1) incorrectly told Rodriguez that avoiding removal was “difficult” but “do-able” when in fact removal was virtually certain; (2) “wrongly urged [Rodriguez] not to withdraw his guilty plea and withheld advice that would have counseled in favor of a motion to withdraw prior to sentencing,” and (3) failed to investigate and advise him about the possibility of pleading guilty to a non-felony charge. In response, the government moved to dismiss Rodriguez’s 2255 motion on the basis of the waiver contained in the plea agreement.

In ruling on the motion, the district court found that Rodriguez’ first and second claims challenged the validity of his actual plea and was thus not waived by the plea agreement. Nonetheless, the district court denied Rodriguez’ claims on the merits without holding an evidentiary hearing. Rodriguez appealed to the Ninth Circuit and was granted a certificate of appealability.

In addressing whether Rodriguez’ claims were foreclosed by his plea waiver, the Ninth Circuit concluded that Rodriguez’ first claim that his attorney misinformed him of the likely immigration consequence of his plea was an attack on whether Rodriguez had knowledge of the effect of his guilty plea and was therefore not waived. The court next noted that Rodriguez’ second claim pertained to the withdrawal of his guilty plea rather than his initial agreement to plead guilty. However, the court held that the distinction was irrelevant. Both kinds of claims assert that the defendant is subject to the terms of his guilty plea only because of his attorney’s ineffectiveness, not because of his own free will. “Thus, a claim that an attorney misinformed or coerced the defendant to prevent a withdrawal of a guilty plea before sentencing suffices to attack the knowledge and/or voluntary nature of the plea and is exempted from the appeal/collateral attack waiver.”

Turning to the merits of Rodriguez’ claims, the Ninth Circuit ultimately concluded that the district court abused its discretion in not holding an evidentiary hearing on Rodriguez’ first claim of ineffective assistance of counsel. The court noted three pieces of evidence in the record that indicated Rodriguez considered immigration consequences when he weighed whether to accept his guilty plea: (1) the record showed Rodriguez spoke with his attorney at least twice about the immigration consequences of his plea before and after pleading guilty; (2) at his plea hearing, Rodriguez appeared surprised when the judge stated that his plea could cause him to be deported; and (3) Rodriguez hired an immigration attorney to consult with his defense attorney. While the court noted other evidence in the record that might contradict Rodriguez’ claim, the issue before the court was highly fact-intensive and required an evidentiary hearing. However, the Ninth Circuit concluded that the district judge did not abuse its discretion in denying Rodriguez’ second claim without an evidentiary hearing.

But because the record did not conclusively refute Rodriguez’ first claim of ineffective assistance of counsel, the Ninth Circuit reversed the district court’s judgment on the first 2255 claim and remanded to the district court to hold an evidentiary hearing on (1) whether Rodriguez’ attorney provided deficient performance by telling Rodriguez that deportation was “do-able,” and (2) whether Rodriguez would have proceeded to trial instead of pleading guilty had he not been inadequately advised.