State v. Aguirre-Juarez

2014 UT App 212
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH ,
Plaintiff and Appellee,
v.
MARICELA AGUIRRE-JUAREZ,
Defendant and Appellant.

Amended Memorandum Decision1
No. 20111059-CA
Filed September 11, 2014

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 111905996

Nathalie S. Skibine, Attorney for Appellant

Sean D. Reyes, Andrew F. Peterson, and Jacob S.
Taylor, Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Amended
Memorandum Decision, in which JUDGES JAMES Z. DAVIS and
JOHN A. PEARCE concurred.

VOROS, Judge:

¶1 Maricela Aguirre-Juarez, who is not a U.S. citizen, was
prosecuted for identity fraud in Utah. The State alleged that she
used fraudulent papers to obtain employment. On advice of
counsel, she pled guilty to one count of class A attempted identity

1. This Amended Memorandum Decision replaces the
Memorandum Decision issued July 17, 2014, State v. Aguirre-Juarez,
2014 UT App 167. We have revised Paragraph 16 to eliminate any
possible unintended implication.
State v. Aguirre-Juarez

fraud. On appeal, Aguirre-Juarez contends that her counsel
performed deficiently because the 364-day sentence he bargained
for renders her permanently inadmissible to the United States
under a federal statute. The State responds that her counsel’s
performance was not deficient, but that even if it was, she suffered
no prejudice, because a different federal statute renders her
permanently inadmissible to the United States in any event. We
agree and affirm on that basis.2

¶2 Aguirre-Juarez used a “fake green card,” another person’s
Alien Registration Number, and another person’s social security
number to obtain a job in Utah. The State charged Aguirre-Juarez
with two third-degree-felony counts of identity fraud. As part of a
plea bargain, the State dismissed one count and reduced
Aguirre-Juarez’s other count to attempted identity fraud, a class A
misdemeanor.3

¶3 At Aguirre-Juarez’s plea hearing, both counsel noted that
her plea could have immigration consequences. The prosecutor
stated, “I do wish to put on the record that the defendant is
not a United States citizen, and I do want to make sure she is
aware that this plea could have immigration consequences . . . .”
Aguirre-Juarez’s counsel responded, “Certainly. We have
discussed that very carefully, and . . . she understands the
consequences [of signing the plea deal].” Once she pled guilty,
Aguirre-Juarez could have been deported regardless of her
sentence, because the Immigration and Nationality Act (INA)
classifies as deportable any alien convicted of a crime of moral
turpitude “for which a sentence of one year or longer may be
imposed.” 8 U.S.C. § 1227 (a)(2)(A)(i) (2006) (emphasis added). In

2. The court commends counsel for both Aguirre-Juarez and the
State on their concise and well-reasoned briefing of this appeal.

3. In Utah, class A misdemeanors carry a maximum penalty of one
year imprisonment. Utah Code Ann. § 76-3-204 (LexisNexis 2012).

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State v. Aguirre-Juarez

fact, at the time of the plea hearing, immigration authorities had
already initiated deportation proceedings against Aguirre-Juarez.

¶4 But Aguirre-Juarez’s counsel believed that deportation
would be less likely if she avoided a one-year sentence. He thus
requested a 364-day sentence rather than the 365-day sentence the
prosecutor requested. The district court imposed a 364-day
sentence and a $200 fine. Aguirre-Juarez had already served
fourteen days. The district court suspended the remaining 350 days
and released Aguirre-Juarez.

¶5 Though both parties expected a guilty plea to carry
deportation consequences, apparently neither foresaw that the plea
could interfere with Aguirre-Juarez’s readmission to the United
States. But in fact, Aguirre-Juarez’s 364-day sentence made her
permanently inadmissible: a subsection of the INA makes an adult
alien convicted of a crime of “moral turpitude” and sentenced to
incarceration for six months or more “ineligible to be admitted to
the United States.” See 8 U.S.C. § 1182(a)(2)(A)(i)–(ii) (2006).

¶6 On appeal, Aguirre-Juarez contends that the Sixth
Amendment entitled her to an attorney aware of this subsection of
the Act and capable of negotiating a plea bargain to circumvent it.
In determining a claim of ineffective assistance of counsel raised for
the first time on appeal, “we must decide whether [the] defendant
was deprived of the effective assistance of counsel as a matter of
law.” State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993); see
also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶7 Strickland v. Washington and Padilla v. Kentucky control.
Strickland provides the two-part framework for ineffective-
assistance-of-counsel claims:

A convicted defendant’s claim that counsel’s
assistance was so defective as to require
reversal . . . has two components. First, the defendant
must show that counsel’s performance was

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State v. Aguirre-Juarez

deficient. . . . Second, the defendant must show that
the deficient performance prejudiced the defense.

466 U.S. 668, 687 (1984). Padilla applies Strickland’s deficient-
performance prong in the context of deportation. When the
“deportation consequence” of a defendant’s plea or conviction “is
truly clear,” counsel’s “duty to give correct advice is equally clear.”
Padilla v. Kentucky, 559 U.S. 356, 369 (2010). But the Supreme Court,
acknowledging that “[i]mmigration law can be complex,” also
concluded that there will “undoubtedly be numerous situations in
which the deportation consequences of a particular plea are unclear
or uncertain.” Id. In those cases, counsel’s duty “is more limited”:
“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.” Id. Thus, to satisfy Strickland
in a deportation context, an attorney who is not “well versed” in
immigration law need only “say something about the possibility of
deportation.” Id. at 369 & n.10.

¶8 A court applying Strickland may begin by addressing either
prong: deficient performance or prejudice. Id. at 697. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Id.; see also,
e.g., State v. Harris, 2012 UT 77, ¶¶ 31–34, 289 P.3d 591. Because it
is easier to dispose of Aguirre-Juarez’s ineffectiveness claim on the
ground of lack of sufficient prejudice, we follow that course here.
Strickland, 466 U.S. at 697.

¶9 Aguirre-Juarez contends that she was prejudiced by her
counsel’s plea advice because he advised her to accept a plea that
included 364 days of jail time. Had she received a sentence of six
months or less, she argues, she would not be barred from re-entry
into the United States under INA section 1182(a)(2)(A)(i). That
subsection declares inadmissible “any alien convicted of . . . acts
which constitute the essential elements of . . . a crime involving
moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006). But section
1182(a)(2)(A)(ii) contains an exception: the moral-turpitude

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State v. Aguirre-Juarez

provision does “not apply to an alien who committed only one
crime if . . . the maximum penalty possible for the crime of which
the alien was convicted . . . did not exceed imprisonment for one
year and . . . the alien was not sentenced to a term of imprisonment
in excess of 6 months.” Id. § 1182(a)(2)(A)(ii)(II).

¶10 Crimes of fraud, such as the one Aguirre-Juarez pled guilty
to, involve moral turpitude. Jordan v. De George, 341 U.S. 223,
227–28 (1951). Aguirre-Juarez’s 364-day sentence thus makes her
inadmissible under section 1182(a)(2)(A)(i). However, as Aguirre-
Juarez contends, had she received a sentence of six months or less,
the moral-turpitude provision would not have barred her re-entry
into the U.S.

¶11 But our inquiry does not end there. The State counters that
even if her counsel had negotiated the very plea bargain that
Aguirre-Juarez claims any minimally competent defense counsel
would have, and thus avoided the moral-turpitude provision’s bar
to re-entry, a separate subsection of the Act would nevertheless bar
her re-entry. Thus, the State argues, she suffered no prejudice in
any event.

¶12 INA section 1182(a)(6)(C) declares inadmissible “[a]ny alien
who, by fraud or willfully misrepresenting a material fact, seeks to
procure . . . a visa, other documentation, or admission into the
United States or other benefit provided under this Act.” 8 U.S.C.
§ 1182(a)(6)(C)(i) (emphasis added). The Act referred to occupies
sections 1107 through 1537 of title 8, chapter 12 of the U.S. Code.
Thus, if Aguirre-Juarez fraudulently sought to obtain any “other
benefit” provided by these sections, she is inadmissible and thus
could not have been prejudiced by her 364-day plea. The State
contends that Aguirre-Juarez received a benefit under chapter 12
when she fraudulently used false papers to obtain employment in
Utah. Specifically, the State argues, Aguirre-Juarez received a
benefit—the ability to work in Utah—to which she was not entitled
under section 1324a of Chapter 12.

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¶13 Section 1324a prohibits the hiring of unauthorized aliens. Id.
§ 1324a(a)(1)(A). It specifies that an alien may prove his or her legal
qualification for employment by presenting a social security card,
a resident alien card (green card), or an alien registration card. Id.
§ 1324a(b). The State argues that Aguirre-Juarez’s fraudulent use
of a “fake green card,” another person’s alien registration number,
and another person’s social security number to obtain employment
thus allowed her to receive a benefit under title 8, chapter
12—employment—which she could not have otherwise received
absent her misrepresentation.

¶14 The State’s analysis finds support in federal case law. The
few federal courts to consider the issue have concluded that
fraudulent use of section 1324a documentation to obtain
employment constitutes an “other benefit” under chapter 12. For
example, in Jaen-Chavez v. United States Attorney General, the
Eleventh Circuit Court of Appeals held that a noncitizen’s use of a
false social security card to fill out an I-9 employment form
constitutes the receipt of an “other benefit” under section
1182(a)(6)(C). See 415 F. App’x 964, 969 (11th Cir. 2011).4 Similarly,
in Ighekpe v. Gonzales, a federal district court adopted a magistrate’s
conclusion that a noncitizen making a “false statement of
citizenship on an I-9 form for the purpose of obtaining
employment” has received an “other benefit” under
section 1182(a)(6)(C)(i). No. 3-05-CV-0479-P, 2005 WL 1421396, at
*2 (N.D. Tex., June 16, 2005).

¶15 As in Ighekpe, the purpose of Aguirre-Juarez’s identity fraud
was to obtain employment. Under the foregoing federal case law,
the “other benefits” section of the INA, section 1182(a)(6)(C)(i),
would thus prevent Aguirre-Juarez from re-entering the United

4. Jaen-Chavez relies on section 1182(a)(6)(C)(ii), which addresses
misrepresentations of citizenship. Section 1182(a)(6)(C)(i), which
the State relies on here, addresses misrepresentations of legal
residency.

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States even if the “moral turpitude” section, section
1182(a)(2)(A)(i)(I), did not.

¶16 Accordingly, even if trial counsel had sought a six-month
sentence, and the prosecutor had recommended it, and the trial
court had followed that recommendation, we cannot agree that
Aguirre-Juarez would today be eligible to re-enter the United
States. Consequently, Aguirre-Juarez cannot demonstrate
prejudice, and her Sixth Amendment claim fails.

¶17 Affirmed.

20111059-CA 7 2014 UT App 212