Madrigal-Estrella v. State of Oregon

124

Argued and submitted May 3, 2018, affirmed March 18, petition for review

denied August 27, 2020 (366 Or 826)

MIGUEL MADRIGAL-ESTRELLA,

Petitioner-Appellant,

v.

STATE OF OREGON,

Defendant-Respondent.

Washington County Circuit Court

C160056CV; A163556

463 P3d 23

Petitioner, a citizen of Mexico living in the United States without legal immi-

gration status, pleaded guilty and was convicted of one count of driving under

the influence of intoxicants, ORS 813.010. Following his conviction, petitioner

unsuccessfully sought post-conviction relief. Relying on Padilla v. Kentucky, 559

US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010), petitioner argued that that his

trial counsel was constitutionally ineffective under the Sixth Amendment to the

United States Constitution for failing to adequately inform him of the immi-

gration consequences of his guilty plea. The post-conviction court denied relief.

Petitioner appeals, assigning error to that ruling. Held: The post-conviction court

did not err in denying relief. Petitioner failed to establish that the immigration

consequences of his plea were “clear and easily ascertainable” within the mean-

ing of Padilla. As such, trial counsel only had to advise petitioner that his plea

might carry adverse immigration consequences, at which point it was for peti-

tioner to decide whether to seek specific immigration advice before entering the

plea. The record is sufficient to establish that petitioner was advised that a guilty

plea might have immigration consequences.

Affirmed.

Linda Louise Bergman, Senior Judge.

Blake Doré argued the cause for appellant. Also on the

brief was Doré Law Firm.

Ryan Kahn, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge,

and Aoyagi, Judge.*

______________

* Egan, C. J., vice Hadlock, J. pro tempore.

Cite as 303 Or App 124 (2020) 125

AOYAGI, J.

Affirmed.

126 Madrigal-Estrella v. State of Oregon

AOYAGI, J.

Petitioner pleaded guilty and was convicted of

one count of driving under the influence of intoxicants

(DUII), ORS 813.010. He unsuccessfully petitioned for

post-conviction relief, asserting that his trial counsel was

constitutionally inadequate and ineffective for failing to

(1) adequately inform him of the immigration consequences

of his guilty plea, (2) adequately investigate the case, and

(3) move to suppress evidence. On appeal, appellant raises

three assignments of error that correspond to those three

issues. We reject the second and third assignments of error,1

write only to address the first assignment of error, and, ulti-

mately, affirm.

STANDARD OF REVIEW

We review the denial of post-conviction relief for

errors of law. Green v. Franke, 357 Or 301, 312, 350 P3d 188

(2015). “A post-conviction court’s findings of historical fact

are binding on this court if there is evidence in the record

to support them.” Id. “If findings are not made on all such

facts, and there is evidence from which such facts could be

decided more than one way, we will presume that the facts

were decided in a manner consistent with the [trier of fact’s]

ultimate conclusion[.]” Ball v. Gladden, 250 Or 485, 487, 443

P2d 621 (1968).

FACTS

Petitioner is a citizen of Mexico who, in 2013, was

living in the United States “without legal status.” In late

November 2013, he backed his car into another car in a

1

Petitioner’s second assignment of error pertains to trial counsel’s alleged

failure to obtain and view a police video recording. We agree with the post-

conviction court that petitioner failed to establish prejudice, regardless of

whether trial counsel was inadequate or ineffective in that regard. See Sproule

v. Coursey, 276 Or App 417, 421, 367 P3d 946 (2016) (a post-conviction “petitioner

has the burden to prove both inadequacy and prejudice by a preponderance of the

evidence”). In his third assignment of error, petitioner makes four distinct argu-

ments as to why trial counsel should have filed a motion to suppress evidence.

We agree with the state that not all competent attorneys would have moved to

suppress and that the post-conviction court did not err in denying relief. To the

extent that petitioner suggests in passing that all competent attorneys would

have at least discussed with petitioner the possibility of filing a motion to sup-

press, perhaps regardless of the likelihood of success, that argument is undevel-

oped, so we do not consider it. See Bazzaz v. Howe, 262 Or App 519, 529, 325 P3d

775 (2014) (declining to address an undeveloped argument).

Cite as 303 Or App 124 (2020) 127

parking lot, which led to his being arrested and charged

with DUII, ORS 813.010, and failure to perform the duties of

a driver, ORS 811.700. At the time, petitioner was in a diver-

sion program on an earlier DUII charge and was on release

from United States Immigration and Customs Enforcement

(ICE) detention with a $9,000 bond. When he was arrested

on the second DUII, he was jailed and placed on an “immi-

gration hold.” 2

In early January 2014, petitioner and the state

entered into a plea agreement, under which petitioner

agreed to plead guilty to the DUII count and the state

agreed to dismiss the other count. Petitioner’s plea agree-

ment expressly identified immigration consequences as a

“significant consequence” of pleading guilty:

“12. In addition to the sentence imposed, I understand that

there are other significant consequences if I enter a ‘Guilty’

or ‘No Contest’ plea, including, but not limited to:

“ If I am not a United States citizen, deportation/

removal, exclusion from future entry into the United States

or denial of naturalization[.]”

(Underlining in original.) Immigration consequences were

the first of nine potential consequences listed on the pre-

printed form, only three of which were marked on petitioner’s

plea petition.

Petitioner initialed each page of the plea petition

and signed his full signature on the last page. Petitioner’s

court-appointed counsel also signed a “Certificate of

Counsel,” attesting, among other things, that he had “per-

sonally examined” and “explained” to petitioner all of the

2

“Immigration hold” is another term for “immigration detainer.” Christine

M. G. Davis, Annotation, Immigration Detainers or Holds Issued Pursuant to 8

C.F.R. § 287.7, 10 ALR Fed 3d Art I, § 1 (2016). When a noncitizen is in the custody

of a federal, state, or local law enforcement agency, an authorized immigration

officer may give notice to the agency that the Department of Homeland Security

seeks custody of the person “for the purpose of arresting and removing” him or

her. Id. § 2. If the law enforcement agency “informs ICE that [the person] is in

custody on nonimmigration related charges, ICE may issue a detainer request-

ing that the law enforcement agency hold the individual for up to 48 hours, not

including weekend days and holidays, beyond the time that the detainee would

otherwise be released in order to allow ICE to assume custody, if it chooses to do

so.” Id. “The immigration detainer has become the princip[al] mechanism for ICE

to obtain custody over suspected immigration violators in the custody of other

law enforcement officials.” Id.

128 Madrigal-Estrella v. State of Oregon

provisions of the plea agreement and had explained to

petitioner “the maximum penalty and other consequences

of entering a guilty or no contest plea, including possible

immigration consequences.”

Petitioner’s plea hearing was held on January 10,

2014. A Spanish interpreter was present to translate for

petitioner. The trial court discussed terminating probation

and diversion and accepting a plea on the first DUII charge.

Regarding the second DUII charge, the court noted that

petitioner was on an “ICE hold.” Petitioner’s trial counsel

confirmed that that was correct and said that petitioner

had been held on the current charges since late November.

Trial counsel said that they had been “seeking immigration

attorney consultation, as well as debating trial, and now

he’s here * * * to take accountability on all of it.” The court

asked counsel how he thought it was “going to go,” to which

counsel responded that he “obviously had never given guar-

antees” but that petitioner “certainly will go to Tacoma”

(where there is an ICE detention center), which is where he

had gone previously, and that he would have to wait for a

bond hearing, which would take about three weeks. Asked

if he had any sense whether petitioner would be deported

on the second DUII, counsel said that he did not have much

of a sense because he did not have any “direct immigration

experience,” but that his “sense from the immigration attor-

ney is that [petitioner] has a number of ties here, so he may

have an opportunity to bond out and fight this case for an

extended period of time.”

The court asked petitioner if he had anything to say

about the first DUII. Petitioner provided some personal back-

ground. He described phone calls from the Mexican “mafia”

threatening to kidnap his family members in Mexico. He

said that he used alcohol to cope with depression about

the situation. Trial counsel noted at that point that “there

may be some asylum issues.”3 The trial court said that it

3

In a footnote in his opening brief, petitioner asserts that his trial counsel

“made comments to [the trial judge] that [petitioner] was seeking asylum” when,

in fact, petitioner “does not qualify for, and has never sought, asylum.” Petitioner

does not provide a record citation for that assertion, and we have not found

any instance of trial counsel telling the trial court that petitioner was seeking

asylum.

Cite as 303 Or App 124 (2020) 129

was thinking the same and that petitioner obviously would

want to tell his story to his immigration attorney. Counsel

responded, “I believe there has already been extensive con-

versations from the original DUII—always more difficult

whenever they go back into custody.”

After making some additional remarks, the trial

court sentenced petitioner on the first DUII to time served,

fines, fees, driver’s license suspension, and two years of

enhanced bench probation, including the “immigration

package.” On the latter point, the court explained that, if

petitioner “[was] not deported,” he would have to report to

Washington County evaluation services within two days

of leaving Tacoma, and, if he “was deported,” he could not

reenter the United States illegally and would have to report

to an ICE facility if he reentered.

Regarding the second DUII charge, the trial court

asked petitioner if he had had sufficient time to discuss the

plea agreement with his attorney, and petitioner said “yes.”

Petitioner also said “yes” when asked if he was satisfied

with the help and advice that he had received from counsel.

The court heard and accepted the factual basis for the plea.

Petitioner’s trial counsel requested that, when the court set

a payment schedule on fines and fees, it take into account

that petitioner “could have potentially an extended stay in

Tacoma.” The court then accepted the plea and imposed

a similar sentence on the second DUII as the first DUII,

including the “immigration package.” The court asked peti-

tioner if he had “any questions about what happened to

[him] this afternoon.” Petitioner responded “no” and added

that he thought “everything was clear.” Petitioner thanked

the court, and the hearing ended.

Two years after his conviction, petitioner filed a

petition for post-conviction relief, asserting inadequate and

ineffective assistance of trial counsel under Article I, section

11, of the Oregon Constitution, and the Sixth Amendment to

the United States Constitution. As relevant here, petitioner

alleges that trial counsel failed to adequately inform him

of the immigration consequences of his guilty plea, failed

to advise him that his guilty plea would have immigration

consequences, and did not research federal immigration law

130 Madrigal-Estrella v. State of Oregon

or consult with an immigration attorney to correctly advise

him about the immigration consequences of pleading guilty

to a second DUII.

Petitioner’s post-conviction trial was held in 2016.

Neither party offered live testimony. Petitioner relied on

three affidavits—two of his own and one of an immigration

attorney named Carter—while the state submitted an affi-

davit from petitioner’s trial counsel. We summarize the rel-

evant portions of each of those affidavits.

Petitioner attested as follows. He met with trial

counsel three times. He asked trial counsel to speak with

his immigration attorney, but trial counsel declined, say-

ing that he “had nothing to do with immigration.” Petitioner

heard from his wife that his immigration attorney had tried

unsuccessfully to get in touch with trial counsel several

times. Petitioner did not speak with his immigration attor-

ney while he was in jail. Trial counsel never gave petitioner

any immigration-related advice. According to petitioner,

on the day of his plea hearing, trial counsel arrived late at

court, “had not reviewed [the] plea petition before court,”

“reviewed the plea petition with [petitioner] very quickly

with an interpreter,” “did not discuss all the parts of the

petition,” and “did not read or discuss section 12 with [peti-

tioner].” According to petitioner, the interpreter did not read

the petition “word for word,” and petitioner does not read

English.

Carter, who identified herself (in 2016) as petition-

er’s immigration attorney, attested as follows. Petitioner is

facing deportation. He initially came to ICE’s attention while

in jail on the first DUII, and the second DUII “caused him

to return to the attention of ICE.” Under “the current prior-

ities for enforcement and detainment,” petitioner “would not

be prosecuted as a deportable alien if he did not have the

DUII convictions.” “Competent immigration counsel would

realize that the second DUII would trigger detainment and

charges,” and “[t]his information would be available by con-

sulting with a competent immigration attorney.” In Carter’s

view, any immigration advice that trial counsel gave to peti-

tioner was insufficient unless it accounted for “the current

immigration enforcement priorities.” “Those immigration

Cite as 303 Or App 124 (2020) 131

consequences are clear and are easily ascertainable by con-

sulting enforcement priority memos and consulting with a

practicing immigration attorney.” Informing petitioner only

that he “may” be deported “is unhelpful at best and would not

explain the immigration consequences clearly.” According

to Carter, a hit-and-run charge (i.e., failure to perform the

duties of a driver) “is often worse than a DUII.” But “DUIIs

affect good moral character, not as a complete bar, but as a

mark on discretion,” and a second DUII “oftentimes means

a denial of discretion.” Because petitioner is “without legal

status,” he “will certainly be deported,” unless he can adjust

his status.

Petitioner’s trial counsel attested as follows. The

court appointed him on December 2, 2013, to represent

petitioner. Trial counsel had Moore, who speaks Spanish,

meet with petitioner for a preliminary interview that same

day. Moore discussed with petitioner, among other things,

his immigration hold. Trial counsel personally met with

petitioner on December 16, with an interpreter, to discuss

the case. Petitioner told him at the December 16 meeting

that he had an immigration attorney named Steven Miller.

That led to Moore contacting petitioner’s wife, regarding

contact with Miller. Trial counsel met again with petitioner

on January 7, with an interpreter, and reviewed the plea

petition with him. At that time, trial counsel understood

that petitioner had been in contact with his immigration

attorney, Miller, “regarding the consequences of enter-

ing a plea.” Petitioner entered the plea three days later,

on January 10, in court, with a court-certified interpreter

present.

The post-conviction court denied relief, making the

following findings regarding the immigration claim:

“[Petitioner] was already under ICE release at the time of

his arrest. Trial [attorney] knew [petitioner] had an immi-

gration attorney for that matter and that [petitioner’s] wife

was in contact with that lawyer. Although it is proven that

trial attorney had no contact with the immigration attor-

ney, there is an absence of proof that [petitioner] had not

gotten advice from that immigration attorney. There is

no affidavit addressing that issue—no affidavit from [the]

immigration attorney or [petitioner’s] wife and [petitioner]

132 Madrigal-Estrella v. State of Oregon

does not directly address it. It is not unreasonable for the

trial attorney to expect [petitioner] or his wife to consult

with that expert who was already aware of [petitioner’s]

status and legal problems and for the trial attorney to rely

on the expertise of that expert. The plea petition addresses

immigration problems, and there was a discussion on the

record. The attorney says that [petitioner] has discussed

ICE issues with his immigration attorney.”

Petitioner appeals from the resulting judgment. He

argues that the “post-conviction court erred in holding that

petitioner was adequately informed of the immigration

consequences of pleading guilty when trial counsel did not

inform [p]etitioner of the immigration consequences of his

plea but instead assumed [that] he obtained that informa-

tion elsewhere.”

ANALYSIS

A petitioner is entitled to post-conviction relief when

he establishes a “substantial denial” of a state or federal

constitutional right that “rendered the conviction void.” ORS

138.530(1)(a). In this case, petitioner claims that he was

denied his rights to adequate assistance of counsel under

Article I, section 11, of the Oregon Constitution and effec-

tive assistance of counsel under the Sixth Amendment to

the United States Constitution. Those standards are “func-

tionally equivalent,” with both requiring “adequate perfor-

mance by counsel concerning the functions of professional

assistance which an accused person relies upon counsel to

perform on his behalf.” Montez v. Czerniak, 355 Or 1, 6, 322

P3d 487, adh’d to as modified on recons, 355 Or 598, 330 P3d

595 (2014) (internal quotation marks omitted). However, for

reasons to be explained shortly, we limit our discussion to

the Sixth Amendment. Under the Sixth Amendment, peti-

tioner had to prove that, considering all the circumstances,

his trial counsel’s “identified acts or omissions were out-

side the wide range of professionally competent assistance”

and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceed-

ing would have been different.” Strickland v. Washington,

466 US 668, 690-94, 104 S Ct 2052, 80 L Ed 2d 674

(1984).

Cite as 303 Or App 124 (2020) 133

In the seminal case of Padilla v. Kentucky, 559

US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010), the United

States Supreme Court recognized for the first time that the

Sixth Amendment requires criminal defense attorneys to

advise their clients about immigration consequences—to a

greater or lesser degree, depending on the circumstances.

The petitioner in Padilla was a lawful permanent resident

of the United States who faced deportation after pleading

guilty to drug distribution. Id. at 359. In a Kentucky post-

conviction proceeding, he alleged that his trial counsel had

“not only failed to advise him of this consequence prior to

his entering the plea, but also told him that he ‘did not have

to worry about immigration status since he had been in the

country so long.’ ” Id. He alleged that he would have gone to

trial but for that incorrect advice. Id.

Applying the Sixth Amendment, the Supreme Court

agreed with the petitioner “that constitutionally compe-

tent counsel would have advised him that his conviction for

drug distribution made him subject to automatic deporta-

tion.” Id. at 360. In reaching that conclusion, the Supreme

Court recognized the specialized nature of immigration law

but emphasized that, in Padilla, the “terms of the relevant

immigration statute [were] succinct, clear, and explicit in

defining the removal consequences for [the petitioner’s] con-

viction,” such that the petitioner’s “counsel could have easily

determined that his plea would make him eligible for depor-

tation simply from reading the text of the statute.” Id. at

368. “[W]hen the deportation consequence is truly clear, as

it was in [Padilla], the duty to give correct advice is equally

clear.” Id. at 369. By contrast, the Supreme Court explained,

when “the deportation consequences of a particular plea

are unclear or uncertain,” a criminal defense attorney’s

duty “is more limited.” Id. “When the law is not succinct

and straightforward * * *, a criminal defense attorney need

do no more than advise a non-citizen client that pending

criminal charges may carry a risk of adverse immigration

consequences.” Id.

As described by the Oregon Supreme Court,

“[a]fter Padilla, if the immigration consequences of plead-

ing guilty to certain crimes are ‘truly clear,’ * * * then the

134 Madrigal-Estrella v. State of Oregon

Sixth Amendment requires defense counsel to advise their

clients not merely that a conviction ‘may result’ in adverse

immigration consequences but that deportation and other

adverse immigration consequences will be ‘virtually inevita-

ble’ as a result of the plea.” Chavez v. State of Oregon, 364 Or

654, 661, 438 P3d 381 (2019). Conversely, “[w]hen the immi-

gration consequences are unclear, criminal defense counsel

must only apprise the defendant of the ‘risk of adverse immi-

gration consequences.’ ” Daramola v. State of Oregon, 294 Or

App 455, 465, 430 P3d 201 (2018), rev den, 364 Or 723 (2019)

(quoting Padilla, 559 US at 369); see also Gutale v. State

of Oregon, 364 Or 502, 504, 435 P3d 728 (2019) (describing

Padilla as “requiring counsel to inform a criminal defen-

dant of clear immigration consequences of a plea and, where

consequences are not clear, to advise that [a] plea may carry

a risk of adverse immigration consequences”). Because the

Sixth Amendment now requires more of defense counsel

than Article I, section 11, with respect to providing advice

about immigration consequences, we limit our discussion to

the Sixth Amendment.4

In this case, petitioner asserts that his trial coun-

sel was constitutionally ineffective because the second DUII

conviction “has severely damaged [petitioner’s] ability to

adjust his immigration status,” such that he “is facing cer-

tain deportation,” and that those consequences “were clear

and easily ascertainable.” In petitioner’s view, to quote his

4

Prior to Padilla, Oregon was one of the few states to require criminal

defense attorneys to give any immigration advice. Chavez, 364 Or at 659. Since

1985, it has been the rule in Oregon that “lawyers will fall below the standard

that the Oregon Constitution requires if they fail to warn clients who are not

United States citizens that a guilty plea ‘may result’ in deportation and other

adverse immigration consequences.” Id.; see Lyons v. Pearce, 298 Or 554, 567, 694

P2d 969 (1985); Gonzalez v. State of Oregon, 340 Or 452, 459, 134 P3d 955 (2006)

(reaffirming Lyons). In his opening brief, petitioner summarily asserts that,

after Padilla, the Oregon Constitution should be interpreted to require the same

advice regarding immigration consequences as the Sixth Amendment. Petitioner

cites no authority for that proposition, and we have at least twice rejected the

same argument. See Aguilar v. State of Oregon, 292 Or App 309, 314-15, 423 P3d

106 (2018) (recognizing that Gonzales continues to state the standard under the

Oregon Constitution); Saldana-Ramirez v. State of Oregon, 255 Or App 602, 608

n 4, 298 P3d 59 (2013) (same). Petitioner has not developed a separate argument

under the Oregon Constitution. In any event, the Oregon constitutional standard

is lower, so petitioner cannot prevail under Article I, section 11, given our dispo-

sition under the Sixth Amendment.

Cite as 303 Or App 124 (2020) 135

opening brief, trial counsel was required to advise petitioner

that he “will be deported” if he pleads guilty to a second

DUII, rather than that he “could be” deported.5 (Emphases

in original.) In response, the state disputes that the immi-

gration consequences of the plea were clear and easily ascer-

tainable, and it maintains that petitioner received constitu-

tionally effective representation.

The threshold question, then, is whether the immi-

gration consequences of petitioner’s guilty plea to the sec-

ond DUII were clear and easily ascertainable, such that

the Sixth Amendment required petitioner’s trial counsel

to recognize those consequences and communicate them to

petitioner, or whether they were unclear or uncertain, such

that the Sixth Amendment required only that he advise

petitioner that a conviction might carry a risk of adverse

immigration consequences. Padilla, 559 US at 369; see also

Daramola, 294 Or App at 465 (“In approaching any Padilla-

based claim the analysis begins with the threshold question:

Are the immigration consequences clear?”). If the immigra-

tion consequences of petitioner’s plea were clear and easily

ascertainable, then petitioner’s trial counsel was personally

responsible for ensuring that petitioner received correct

advice on that issue, Daramola, 294 Or App at 465, and he

could not simply assume that petitioner was getting correct

advice from his immigration attorney. Conversely, if they

were unclear or uncertain, then trial counsel only needed

to put petitioner on general notice that his plea might have

immigration consequences, at which point it was petitioner’s

choice whether to consult an immigration attorney before

entering the plea.

We agree with the state that, in this case, petitioner

has not established that the immigration consequences of

his plea were clear and easily ascertainable in 2013. Unlike

the petitioner in Padilla, petitioner was already subject to

deportation before he pleaded guilty to the second DUII

charge, because, to use Carter’s phrasing, petitioner was

“here without legal status.” Although we disagree with the

5

Petitioner also argues that he was prejudiced by trial counsel’s alleged inef-

fectiveness, but, given our disposition, we need not reach the issue of prejudice.

136 Madrigal-Estrella v. State of Oregon

state that petitioner’s lack of legal status makes Padilla

inapplicable per se, petitioner’s lack of legal status does

muddy the waters as far as the immigration consequences of

his plea are concerned. Unlike the petitioner in Padilla, peti-

tioner did not have a legal immigration status that he could

lose as a result of pleading guilty to a crime. See Padilla, 559

US at 360 (as a lawful permanent resident, the petitioner

was subject to immediate deportation under 8 USC § 1227

when he was convicted of drug distribution charges); see also

Garcia-Navarro v. State of Oregon, 290 Or App 587, 588, 417

P3d 464 (2018) (similar). Instead, petitioner’s contention is

that, as someone without legal status, the second DUII con-

viction made it significantly more challenging for him to

successfully obtain a discretionary cancellation of removal,

based on good moral character.

The difficulty with petitioner’s argument is that

petitioner fails to explain—or at least fails to explain per-

suasively—how it would have been clear and easily ascer-

tainable to petitioner’s trial counsel in 2013 that pleading

guilty to the second DUII “virtually assured [petitioner’s]

deportation.” It is important to note that whether the immi-

gration consequences of a plea were clear and easily ascer-

tainable is a question of law, not fact. Daramola, 294 Or App

at 466. Further, the question is whether the immigration

consequences were clear and easily ascertainable to any

competent attorney, not whether an immigration attorney

with specialized knowledge would have had an opinion on

the issue. See id. at 466-67; see also Padilla, 559 US at 368

(explaining that the petitioner’s criminal defense counsel

could have easily ascertained the immigration consequences

of the plea by simply reading the relevant statute).

A post-conviction petitioner therefore cannot merely

rely on an immigration attorney’s expert opinion on a ques-

tion of immigration law but, rather, must explain—whether

through legal briefing, a lawyer’s testimony, both, or other-

wise—how the immigration consequences of a plea would

have been clear and easily ascertainable to any competent

attorney, including identifying the relevant sources of law.

Relatedly, in the post-conviction setting, the court’s task

is to review the identified sources of law and determine

Cite as 303 Or App 124 (2020) 137

whether they actually made the immigration consequences

of the plea clear and easily ascertainable.

Here, petitioner has not adequately demonstrated

that the immigration consequences of his plea were clear

and easily ascertainable. Plaintiff relies on Carter’s unre-

futed affidavit to establish the point, but, in reality, it does

not.

In her affidavit, Carter does not identify any statute

or regulation that petitioner’s trial counsel could have read

and thereby learned of a clear immigration consequence of

petitioner’s plea. See Padilla, 559 US at 369 (looking to the

“terms of the relevant immigration statute,” which were “suc-

cinct, clear, and explicit” about the removal consequences

of the petitioner’s conviction). Instead, Carter asserts that

“competent immigration counsel would realize that the sec-

ond DUII would trigger detainment and charges”; that “this

information would be available [to trial counsel] by consult-

ing with a competent immigration attorney”; and that the

immigration consequences of petitioner’s plea “are clear

and easily ascertainable by consulting enforcement priority

memos and consulting with a practicing immigration attor-

ney.” (Emphases added.) Again, the fact that an attorney

with specialized knowledge of immigration law would have

had an opinion as to the immigration consequences of a par-

ticular criminal plea does not mean that those consequences

were “clear and easily ascertainable.” As used in Padilla,

“clear and easily ascertainable” means that any competent

attorney would have been able to discern the immigration

consequences of a particular plea by consulting readily

available sources of law.

The only potential source of law that Carter identi-

fies as relevant to whether the immigration consequences of

petitioner’s plea were clear—at least in conjunction with con-

sulting an immigration attorney—is unspecified “enforce-

ment priority memos.” But petitioner has not identified the

specific “enforcement priority memos” that existed in 2013,

established that those memoranda were readily available

to all attorneys in 2013, or addressed their contents in

any way. Thus, even assuming arguendo that such memo-

randa are a source of law that a competent nonimmigration

138 Madrigal-Estrella v. State of Oregon

attorney would be expected to consult,6 we are in no position

to assess whether they actually would have made the immi-

gration consequences of petitioner’s plea clear and easily

ascertainable.

Given the particular immigration consequences

that petitioner contends flowed from his guilty plea—that

is, that the second DUII conviction made it more difficult

for him to obtain a discretionary cancellation of removal,

based on good moral character—it is difficult to see how

those immigration consequences could have been “clear and

easily ascertainable” within the meaning of Padilla. That

is, it is difficult to see how trial counsel could have accu-

rately advised petitioner in 2013 that he will be deported

if he pleads guilty to the second DUII (which is the advice

that petitioner now claims that he should have been given) if

whether petitioner would actually be deported depended on

some combination of the federal executive branch’s enforce-

ment priorities, which are presumably subject to change,

and the discretionary decision of an immigration judge

regarding petitioner’s “moral character.”7

Padilla could be read to suggest that immigra-

tion consequences that turn on issues like “moral charac-

ter” are inherently unclear or uncertain. The majority in

Padilla emphasized that the statute at issue there was spe-

cific, rather than “address[ing] some broad classification

of crimes,” and noted that “many of the scenarios posited

by Justice Alito” in his concurrence involved “situations in

which the deportation consequences of a particular plea are

unclear or uncertain.” Padilla, 559 US at 368-69. In the con-

currence, then, Justice Alito discussed that “[m]ost crimes

6

The record does not contain copies of the “enforcement priority memos”

referenced by Carter (or any legal citations thereto) or any information about

how readily available they were in 2013. As such, we express no opinion as to

whether we would consider them a source of law that constitutionally adequate

trial counsel would have been expected to consult in 2013. See Padilla, 559 US at

369 (limiting what advice a criminal defense attorney must give about immigra-

tion consequences “[w]hen the law is not succinct and straightforward” (emphasis

added)).

7

According to Carter, “[t]he case that [petitioner] is fighting in immigration

court to avoid deportation directly involves good moral character, as required

by the statute under 240A(b) and INA 101(f),” and “[d]iscretion is built into the

statute, as in it is a requirement that the Immigration Judge finds the immigrant

deserving of discretion.”

Cite as 303 Or App 124 (2020) 139

affecting immigration status * * * fall under a broad cate-

gory of crimes, such as crimes involving moral turpitude or

aggravated felonies,” and explained why it is “not an easy

task” to determine if a particular crime falls into either of

those categories. Id. at 378 (Alito, J., concurring) (quotation

marks omitted) (emphasis in original).

We need not go so far today, however, as to hold that

any immigration consequence that involves an exercise of

executive or judicial discretion is per se unclear or uncer-

tain. We do not foreclose the possibility of a circumstance

in which the immigration consequences of a plea are clear

and easily ascertainable, notwithstanding the involvement

of some executive or judicial discretion. But, in this case,

petitioner has fallen far short of establishing that the immi-

gration consequences of his guilty plea to the second DUII

charge were clear and easily ascertainable in 2013.

In that regard, the case is similar to Daramola.

There, we concluded that a post-conviction petitioner had

failed to establish that the crime to which he pleaded guilty

was clearly an “aggravated felony” under 8 USC § 1101(43),

subjecting him to specific immigration consequences.

Daramola, 294 Or App at 466. An immigration attorney

testified at the post-conviction trial that it was “virtually

certain” that the crime would be deemed an “aggravated fel-

ony.” Id. However, that legal conclusion was not clear on the

face of the statute, nor did petitioner point to any other legal

authority that would have made it clear to his trial counsel.

Id. We therefore concluded that the petitioner’s trial counsel

was not constitutionally ineffective in failing to give the spe-

cific immigration advice that the petitioner contended that

he should have been given. Id.; see also Aguilar v. State of

Oregon, 292 Or App 309, 316, 423 P3d 106 (2018) (rejecting

argument that the post-conviction petitioner’s trial counsel

was constitutionally ineffective for failing to give him advice

about immigration consequences related to Deferred Action

for Childhood Arrivals, which was more “comprehensive and

specific immigration advice” than Padilla required under

the circumstances).

That leaves only the question of whether trial coun-

sel advised petitioner that the DUII charge “may carry a

140 Madrigal-Estrella v. State of Oregon

risk of adverse immigration consequences.” Padilla, 559 US

at 369. Petitioner does not squarely address that issue. In

his brief, he says at one point that trial counsel “appears

not to have given [petitioner] any advice regarding immigra-

tion consequences” but, immediately thereafter, says that,

“[b]ased on his conversation with the trial court,” trial

counsel “did not clearly inform petitioner that he will be

deported, only that he ‘could be’ deported.” (Emphases and

internal quotation marks in original.) More generally, peti-

tioner does not meaningfully develop any argument that,

under Padilla, his trial counsel was constitutionally ineffec-

tive even if the immigration consequences of his plea were

unclear or uncertain.

In any event, we agree with the state that evidence

in the record supports the post-conviction court’s implicit

finding that petitioner was advised that pleading guilty to

the second DUII charge might carry a risk of adverse immi-

gration consequences.

When trial counsel was appointed, petitioner had

already been detained by ICE in connection with his first

DUII charge, had an immigration attorney, and was on an

immigration hold. Moore met with petitioner at trial coun-

sel’s behest, on the day that counsel was appointed, and

discussed with him, among other things, petitioner’s immi-

gration hold. Two weeks later, trial counsel himself talked

to petitioner about the fact that petitioner had an immigra-

tion attorney. In that context, trial counsel went over the

plea agreement with petitioner three days prior to the plea

hearing 8 —which plea agreement contained an express

statement that, if petitioner was not a United States citizen,

“deportation/removal, exclusion from future entry into the

United States or denial of naturalization” were “significant

additional consequences” of pleading guilty. Trial counsel

contemporaneously signed a certificate attesting that he had

gone over all of the plea agreement provisions with petitioner

8

In their affidavits, petitioner’s trial counsel attested that he went through

the plea petition with petitioner and an interpreter three days before the plea

hearing, whereas petitioner attested that trial counsel did not review the plea

petition before the hearing and did not discuss the immigration provision with

him. In ruling as it did, we understand the post-conviction court to have resolved

that factual dispute in trial counsel’s favor.

Cite as 303 Or App 124 (2020) 141

and discussed immigration consequences. The potentially

adverse immigration consequences of the guilty plea were

then expressly acknowledged and discussed at petitioner’s

plea hearing, in his presence, with an interpreter present to

translate for him. Having heard those statements, petitioner

affirmatively told the trial court that he had had sufficient

time to discuss the plea agreement with his trial counsel,

did not have any questions about what had happened in

court, and thought that “everything was clear.”

On that record, the post-conviction court did not err

in finding that petitioner was advised that his guilty plea

might have immigration consequences. And, because peti-

tioner failed to demonstrate that the specific immigration

consequences of his plea were clear and easily ascertainable,

that was the only advice that trial counsel was required to

provide under Padilla.9

CONCLUSION

The post-conviction court did not err in denying

relief on petitioner’s post-conviction claims. Accordingly, we

affirm.

Affirmed.

9

In his opening brief, petitioner contends (as part of his first assignment of

error) that, because his trial counsel was constitutionally ineffective with regards

to advising him on the immigration consequences of his plea, the plea was not

knowing and voluntary. Having rejected the underlying premise, we reject that

argument as well. See Aguilar, 292 Or App at 317-18 (rejecting similar argument

for similar reasons).