Dilang Dat v. United States of America

St. Louis, MO - Criminal defense lawyer represented Petitioner - Appellant with a robbery charge.

Dat was indicted for two counts of robbery under 18 U.S.C. § 1951, and one

count of brandishing a firearm in furtherance of a crime of violence under 18 U.S.C.

§ 924. United States v. Dat, 2019 WL 5538074, at *1 (D. Neb. 2019). He pled

guilty to one robbery count. The other charges were dismissed, pursuant to a plea

agreement. The district court sentenced him to 78 months in prison.

Dat's robbery conviction is an aggravated felony. Dat, 920 F.3d at 1194

("aggravated felony” means "a crime of violence under 18 U.S.C. § 16 with a term

of imprisonment of at least one year,” which includes "an offense that has as an

element the use, attempted use, or threatened use of physical force against the person

or property of another”), quoting 8 U.S.C. § 1101(43)(F).

An aggravated felony conviction is a deportable offense. 8 U.S.C.

§ 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any

time after admission is deportable.”); 8 U.S.C. § 1229b(a)(3) (stating that an alien

"convicted of any aggravated felony” is not eligible for cancellation of removal);

Chaidez v. United States, 568 U.S. 342, 345 (2013) (stating that an aggravated

felony conviction subjects an individual to "mandatory removal”).

Dat moved to vacate his guilty plea, asserting ineffective assistance of

counsel. He claimed that his attorney, Kyle Allen, assured him that his immigration

status would not be affected by his plea. The district court denied the motion,

without an evidentiary hearing. See United States v. Dat, 2017 WL 3608236 (D.

Neb. 2017), rev'd and remanded, 920 F.3d 1192. This court disagreed. Dat, 920

F.3d at 1196.

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At the hearing, Allen testified:

• she repeatedly told Dat the charges against him were "deportable

offenses,” subjecting him to deportation proceedings.

• she told him that "he could face immigration ramifications which

could result in deportation.”

• she never told him, his mother, or his fiancée that he would not be

deported.

• she encouraged Dat to hire an immigration attorney, providing a

name and contact information.

• before the plea hearing, she and Dat reviewed the Plea Petition and

Plea Agreement. The Plea Petition says that non-U.S. citizens

would be permanently removed from the U.S. if found guilty of

most felony offenses. The Plea Agreement says, "Defendant

acknowledges that there are or may be collateral consequences to

any conviction to include but not limited to immigration . . . .”

• she and Dat reviewed the Presentence Investigation Report and

Sentencing Recommendation; both state that immigration

proceedings would commence after his release from custody.

The district court found Allen credible, and her responses forthright and consistent

with other evidence in the record. Dat, 2019 WL 5538074, at *3–4.

Dat testified that Allen advised that he would not be deported if he pled guilty.

His mother and fiancée testified to the same effect. The district court found Dat not

credible, because his testimony was evasive, conflicted with his prior sworn

statements, and reflected a motive to vacate his plea. Id. at *4–5. The district court

found Dat's mother and fiancée not credible, as they had a motive to help him vacate

his plea. Id.

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Denying the motion to vacate, the district court ruled that Dat could not show

that Allen's representation was objectively unreasonable or that her performance

prejudiced him. Id. at *7.

This court reviews de novo the district court's legal determinations, and for

clear error its findings of fact. Walking Eagle v. United States, 742 F.3d 1079, 1082

(8th Cir. 2014) (stating that an ineffective assistance of counsel claim "raises mixed

questions of law and fact.”). On appeal, this court defers to the district court's

credibility determinations. Id.; United States v. Cervantes, 929 F.3d 535, 539 (8th

Cir. 2019) (stating that "the district court's 'findings regarding the credibility of

witnesses are virtually unreviewable on appeal.' ”), quoting United States v.

Santana, 150 F.3d 860, 864 (8th Cir. 1998).

The Sixth Amendment guarantees "the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984), quoting McMann

v. Richardson, 397 U.S. 759, 771 n.14 (1970). To establish ineffective assistance

during plea negotiations, "a defendant must show that counsel's representation 'fell

below an objective standard of reasonableness' and that he was prejudiced as a

result.” Lee v. United States, 137 S. Ct. 1958, 1964 (2017), quoting Strickland, 466

U.S. at 688. The defendant "bears the burden to overcome the strong presumption

that counsel's performance was reasonable.” Thomas v. United States, 737 F.3d

1202, 1207 (8th Cir. 2013).

Dat must show that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.”

White v. Dingle, 757 F.3d 750, 752 (8th Cir. 2014), quoting Strickland, 466 U.S. at

687. Defense attorneys "have a duty to inform clients about the possible

immigration consequences of pleading guilty in order to provide effective counsel

under the Sixth Amendment.” Barajas v. United States, 877 F.3d 378, 380 (8th Cir.

2017), citing Padilla v. Kentucky, 559 U.S. 356, 374 (2010). Unreasonableness may

be established if the defense attorney failed to "inform clients about the possible

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immigration consequences of pleading guilty.” Dat, 920 F.3d at 1194, quoting

Barajas, 877 F.3d at 380.

The district court found that Allen repeatedly told Dat he was charged with

deportable offenses and subject to deportation proceedings if convicted. Dat, 2019

WL 5538074, at *7. She did not assure him he would not be deported. Id. at *3.

The district court found Allen credible. Id. at *4. While Dat, his mother, and his

fiancée testified to the contrary, the district court found them not credible. Id. at *4–

5. The district court's credibility determinations and findings of fact are entitled to

this court's deference. See Walking Eagle, 742 F.3d at 1082.

Dat argues that Allen's representation was unreasonable because she did not

inform him that his deportation was a virtual certainty. Dat stresses that at the

hearing, Allen admitted she didn't tell him the "virtual certainty” of deportation if

convicted. See United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (stating

that a "criminal defendant who faces almost certain deportation is entitled to know

more than that it is possible that a guilty plea could lead to removal; he is entitled to

know that it is a virtual certainty.”) (emphasis in original). See generally Padilla,

559 U.S. at 369 ("[W]hen the deportation consequence is truly clear, . . . the duty to

give correct advice is equally clear.”). According to Dat, telling him "he could face

immigration ramifications which could result in deportation” did not convey the

virtual certainty of his deportation.

It was objectively reasonable for Allen to tell Dat that he "could” face

immigration ramifications that "could” result in deportation. In Padilla, the

Supreme Court held that counsel must advise the defendant that "his conviction

would make him 'deportable' under 8 U.S.C. § 1227(a)(2)(B)(I) if he pleaded guilty,

not that deportation or removal was either mandatory or certain.” United States v.

Ramirez-Jimenez, 907 F.3d 1091, 1094 (8th Cir. 2018) (per curiam). Cf. Chaidez,

568 U.S. at 345–46 (stating that under Padilla, "criminal defense attorneys

must inform non-citizen clients of the risks of deportation arising from guilty

pleas.”) (emphasis added). An alien with a deportable conviction may still seek

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"relief from removal by providing evidence that he is eligible for asylum,

withholding of removal, or relief under the Convention Against Torture.” RamirezJimenez, 907 F.3d at 1094. These "immigration law complexities” should "caution

any criminal defense attorney not to advise a defendant considering whether to plead

guilty that the result of a post-conviction, contested removal proceeding is clear and

certain.” Id.

On the facts here, Allen was not required to tell Dat that his deportation was

virtually certain. See id. at 1093–94 (rejecting an ineffective assistance claim where

trial counsel told the defendant he "may be deported” for conviction of a deportable

offense, but did not add that his conviction made him "subject to mandatory

deportation”). Allen's legal representation was objectively reasonable.

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The judgment is affirmed.