Herbert A. Igbanugo, Jason A. Nielson, Igbanugo Partners
Int'l Law Firm, PLLC, Minneapolis, Minnesota, for
Swanson, Attorney General, Saint Paul, Minnesota; and
L. Fossum, Rice County Attorney, Terence Swihart, Assistant
Rice County Attorney, for respondent.
J. Magnuson, Colin F. Peterson, Robins Kaplan, LLP,
Katherine L. Evans, R. Linus Chan, University of Minnesota
Law School Center for New Americans, Minneapolis, Minnesota;
Keller, Sheila Stuhlman, Immigrant Law Center of Minnesota,
Saint Paul, Minnesota for amicus curiae Immigrant Law Center
D. Nestor, De León & Nestor, LLC, Minneapolis,
Minnesota, for amicus curiae Minnesota Association of
Criminal Defense Lawyers.
counsel was only required to inform a noncitizen client that
his guilty plea to third-degree criminal sexual conduct may
subject him to removal from the United States, Minn. Stat.
§ 609.344, subd. 1(b) (2016), because it was not
"truly clear" that the offense constituted
"sexual abuse of a minor" under the
aggravated-felony provision of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2015).
case requires us to determine the extent of a
criminal-defense attorney's obligation under the Sixth
Amendment to the United States Constitution to inform a
noncitizen defendant of the immigration consequences of a
guilty plea. The appellant, Francisco Herrera Sanchez,
pleaded guilty to third-degree criminal sexual conduct, Minn.
Stat. § 609.344, subd. 1(b) (2016), which led to the
initiation of removal proceedings against him. In an effort
to avoid deportation, Sanchez filed an emergency motion to
withdraw his guilty plea, in which he argued, in part, that
his counsel provided ineffective assistance by failing to
accurately inform him that the plea would lead to his removal
from the United States. The postconviction court denied
Sanchez's motion to withdraw the plea, and the court of
appeals affirmed. Because Sanchez's counsel accurately
advised him about the immigration consequences of his plea,
we also affirm.
who was born in Mexico, arrived in the United States with his
parents as a minor in 2005. In 2012, he applied for and
received Deferred Action for Childhood Arrivals
("DACA"), a program under which noncitizens who
come to the United States as children can receive a limited
deferral from removal proceedings. See Consideration of
Deferred Action for Childhood Arrivals (DACA), U.S.
Citizenship & Immigr. Servs.,
(last updated Dec. 22, 2016).
2013, when Sanchez was 19 years old, the State charged him
with two counts of third-degree criminal sexual conduct.
Minn. Stat. § 609.344, subd. 1(b). The complaint alleged
that Sanchez sexually penetrated two minor children between
13 and 16 years of age. The State also charged Sanchez with
the offense of furnishing alcohol to a minor. Minn. Stat.
§ 340A.702(8) (2016); see Minn. Stat. §
340A.503, subd. 2(1) (2016).
trial, Sanchez pleaded guilty to one of the counts of
third-degree criminal sexual conduct and to the count of
furnishing alcohol to a minor. In exchange, the State agreed
to dismiss the remaining criminal-sexual-conduct count and
recommend that the district court stay the imposition of
Sanchez's sentence, place him on probation, and require
him to serve no more than 90 days of probationary jail time.
As part of the plea process, Sanchez signed a written
petition that included the following statement: "My
attorney has told me and I understand that if I am not a
citizen of the United States this plea of guilty may
result in deportation, exclusion from admission to the United
States of America or denial of citizenship." (Emphasis
the plea hearing, defense counsel questioned Sanchez. Among
other things, defense counsel confirmed that Sanchez had
reviewed the plea agreement. In response to questioning,
Sanchez agreed that he was not a citizen of the United States
and "that as a result of a plea in this particular
matter that, if [he was] not a citizen of the United States,
a plea of guilty could result in either deportation,
exclusion from admission to the United States, or denial of
citizenship." (Emphasis added.) The hearing also
established the factual basis of the plea when Sanchez
admitted that he had engaged in sexual intercourse with a
minor named K.R., whom he knew at the time was less than 16
years of age. He also admitted that he provided alcohol to
K.R. and her friends, each of whom was younger than 21 years
sentencing hearing, the district court formally accepted
Sanchez's plea and stayed imposition of his sentence,
see Minn. Stat. § 609.135 (2016), which
included two concurrent terms of 90 days in jail and 10 years
of supervised probation. According to the warrant of
commitment and by operation of law, successful completion of
the probationary term would convert Sanchez's felony
conviction of third-degree criminal sexual conduct into a
misdemeanor. See Minn. Stat. § 609.13, subd.
after sentencing, officers from Immigration and Customs
Enforcement ("ICE") took Sanchez into custody. That
same day, ICE issued a final administrative removal order.
The order explained that Sanchez was subject to removal from
the United States because the offense of third-degree
criminal sexual conduct involving a minor, Minn. Stat. §
609.344, subd. 1(b), constitutes an "aggravated
felony" under the Immigration and Nationality Act
("INA"). 8 U.S.C. § 1101(a)(43)(A) (2015)
(defining "aggravated felony" to include
"sexual abuse of a minor"); see also 8
U.S.C. § 1227(a)(2)(A)(iii) (2012) ("Any alien who
is convicted of an aggravated felony at any time after
admission is deportable.").
the assistance of new counsel, Sanchez filed an emergency
motion to withdraw his guilty plea under Minn. R. Crim. P.
15.05 and Minn. Stat. § 590.01 (2016). The motion
broadly claimed that Sanchez's plea was not accurate,
voluntary, or intelligent. The motion specifically relied on
a recent Supreme Court decision, Padilla v.
Kentucky, to argue that plea counsel provided
constitutionally inadequate representation by giving him
incorrect advice about the immigration consequences of his
guilty plea. 559 U.S. 356, 369 (2010) (requiring
criminal-defense counsel to advise noncitizen clients that a
plea may result in deportation when the immigration
consequences are "unclear, " or that deportation is
presumptively mandatory when the immigration consequences are
"truly clear"). Sanchez argued that
Padilla required his attorney to advise him that the
plea would result in his deportation, rather than
just that deportation was a possibility. Such advice
was necessary, according to Sanchez, because his removal was
"an absolute certainty" under federal law.
postconviction court granted an evidentiary hearing on
Sanchez's motion. Both plea counsel and Sanchez
testified, but their testimony was inconsistent. The court
resolved the inconsistency by crediting counsel's
testimony over Sanchez's testimony, which led the court
to find that counsel informed Sanchez both "that he was
looking at deportation" and that he
"would be deported as a result of his
reviewing the relevant federal statutes and cases, the
postconviction court concluded that counsel's advice was
constitutionally adequate because the immigration
consequences of Sanchez's plea were not truly clear. The
court reasoned that the definition of "sexual abuse of a
minor" is unsettled under federal law, making it unclear
whether third-degree criminal sexual conduct qualifies as an
aggravated felony under the INA. For that reason, the court
held that it was constitutionally sufficient for plea counsel
to have informed Sanchez that he "was looking at
deportation" or could be deported.
alternative, the postconviction court concluded that, even if
the immigration consequences were "clear and certain,
" plea counsel provided effective assistance "based
upon his private advice" to Sanchez that he "would
be deported." This advice, the court stated, was
sufficient to inform Sanchez that deportation was a
"certain result" of the plea. Accordingly,
regardless of the level of specificity of the advice that
plea counsel was required to give Sanchez, the court held