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Trial counsel’s advice about immigration consequences was sufficient

State v. Ahmed A.M. Al Bawi, 2021AP432-CR, District 3, 1/18/23 (not recommended for publication); case activity (including briefs)

Al Bawi’s trial attorney was not ineffective in advising him about the immigration consequences of his plea.

Al Bawi, an Iraqi citizen, pleaded no contest to third degree sexual assault. The U.S. Department of Homeland Security later detained him, asserting there was probable cause to deport him because of the conviction. He then moved to withdraw his plea, alleging he didn’t know third degree sexual assault was an “aggravated felony” that, under federal immigration law, made deportation virtually certain; that his trial lawyer didn’t give him sufficient advice about the immigration consequences of plea; and that he wouldn’t have entered his plea if he’d known those consequences. (¶¶3-7).

To prevail on his claim that trial counsel was ineffective in advising him of the immigration consequences of his plea, Al Bawi must show: 1) trial counsel  inadequately advised him about the immigration consequences; and 2) he would have rejected the plea bargain if trial counsel had  adequately advised him. The law doesn’t demand that trial counsel know much about immigration law, which can “complex and confusing.” State v. Villegas, 2018 WI App 9, ¶33, 380 Wis. 2d 246, 908 N.W.2d 198. Instead, counsel’s obligations turn on the clarity of federal immigration law as to the consequences of a conviction: If the law is “not succinct and straightforward,” then “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.” If “the deportation consequence is truly clear,” however, “the duty to give correct advice is equally clear.” State v. Shata, 2015 WI 74, ¶35, 364 Wis. 2d 63, 868 N.W.2d 93 (quoting Padilla v. Kentucky, 559 U.S.  356, 369 (2010); emphasis added). (¶¶17-21).

Both Al Bawi and his trial lawyer testified at the hearing on the plea withdrawal motion. Al Bawi said his lawyer doubted he’d be deported because he was in the U.S. under a special visa due to his service to the U.S. military in Iraq. (¶¶3, 11). Trial counsel had a different version of their discussions. Though he didn’t do any legal research or talk to other attorneys who knew immigration law, trial counsel said he advised Al Bawi that he “would be subject to deportation.” He also said it was Al Bawi, not him, who believed his service to the military in Iraq would shield him from deportation. (¶¶9-10).

The circuit court believed trial counsel over Al Bawi, and that scotches Al Bawi’s claim. Applying Shata and State v. Mendez, 2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 895, the court of appeals holds that counsel’s advice to Al Bawi that he “would be subject to deportation” was sufficiently clear advice about the decoration consequences of the plea. Al Bawi doesn’t claim that trial counsel’s advice was “incorrect”; instead, he argues counsel’s advice was inadequate because it was too general given the virtual certainty of deportation for an offense that is an aggravated felony. But even assuming that the immigration consequences of Al Bawi’s plea are that clear, trial counsel is not required to use any particular words or phrases quantifying the risk of deportation, such as telling the defendant he will “actually” be deported, or that deportation was “very likely,” or that there was a “strong chance” of deportation. Instead, trial counsel must provide “correct advice,” and trial counsel did that here by telling Al Bawi that because of his conviction he “would be subject to deportation.” (¶¶24-35).

The court of appeals assumes without deciding that third degree sexual assault is an “aggravated felony” because the state didn’t dispute Al Bawi’s argument on this point; the court declines to adopt his argument and says that whether Al Bawi’s conviction is for an aggravated felony is not “straightforward” or “easily ascertain[able].” (¶¶22-23 & n.5). Also, it doesn’t matter that trial counsel failed to research the relevant law because despite the fact his immigration advice was apparently uninformed, it turned out to be correct enough for the law’s purposes. (¶38).

Also, Al Bawi’s alternative argument—that trial counsel was deficient because he deferred to Al Bawi’s inaccurate belief that his service to the military would insulate him from deportation—fails because the trial court found trial counsel didn’t defer to Al Bawi in that point but correctly advised him he would be subject to deportation. (¶¶36-37).

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