Dat v. United States, No. 19-3504 (8th Cir. 2020)
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Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.
The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain.
Court Description: [Benton, Author, with Shepherd and Kelly, Circuit Judges] Habeas Petition - Motion to Vacate. After an evidentiary hearing, the district court concluded trial counsel was not ineffective for failing to advise defendant that plea to robbery conviction, an aggravated felony, was a deportable offense. The district court's factual findings and credibility determinations are entitled to deference. It was objectively reasonable for counsel to tell Dat he could face immigration ramifications that could result in deportation and was not required to advise that deportation was virtually certain.
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