Amended June 12, 2017 Roberto Morales Diaz v. State of Iowa ( 2017 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 15–0862
    Filed June 9, 2017
    Amended June 12, 2017
    ROBERTO MORALES DIAZ,
    Appellee,
    vs.
    STATE OF IOWA,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Tama County, Mary E.
    Chicchelly, Judge.
    Roberto Morales Diaz seeks further review of a court of appeals
    decision reversing the district court’s grant of postconviction relief.
    DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
    JUDGMENT AFFIRMED AND CASE REMANDED.
    Thomas J. Miller, Attorney General, Kevin Cmelik and Sharon K.
    Hall, Assistant Attorneys General, for appellant.
    Dan Vondra of Cole & Vondra, P.C., Iowa City, for appellee.
    2
    CADY, Chief Justice.
    In this case, we consider the scope of an attorney’s responsibility
    to advise a client who is an unauthorized alien in the United States of the
    immigration consequences of pleading guilty to a criminal offense. The
    district court held the attorney’s advice was insufficient and ordered the
    defendant, Roberto Morales Diaz, be allowed to withdraw his plea. On
    appeal, we transferred the case to the court of appeals.     The court of
    appeals reversed, finding counsel had no duty to provide specific advice
    on the immigration consequences of pleading guilty.          The court of
    appeals also held Morales Diaz failed to show any deficiency of counsel
    caused him prejudice. On further review, we vacate the court of appeals
    and affirm the district court. We conclude Morales Diaz’s attorney failed
    in his duty to advise his client of the direct and severe immigration
    consequences of pleading guilty to the crime of aggravated misdemeanor
    forgery, leading Morales Diaz to plead guilty and subject himself to
    automatic and permanent removal.        We remand this case for further
    proceedings.
    I. Factual Background and Proceedings.
    Roberto Morales Diaz began residing in the United States in 2002.
    He entered this country without examination by the Department of
    Homeland Security. Morales Diaz has a young daughter who is a U.S.
    citizen. He was her primary caregiver until he was taken into custody
    and removed to Mexico. Until this case, Morales Diaz had no criminal
    record.
    On January 24, 2013, a City of Toledo police officer responded to a
    report of a domestic disturbance. The mother of Morales Diaz’s daughter
    reported she felt threatened by Morales Diaz during an argument. The
    altercation did not include physical violence.        The officer placed
    3
    Morales Diaz in a squad car and asked for identification. Morales Diaz
    produced a Texas identification card bearing his name. The officer then
    learned the identification number on the card was registered to a
    different name.    The officer also observed the card had no security
    features.   The officer decided to transport Morales Diaz to the Toledo
    police station for further questioning.
    At the station, the officer interrogated Morales Diaz with the aid of
    an interpreter.   The officer told Morales Diaz he was not going to be
    arrested for the reported domestic disturbance, but he was going to be
    questioned about the identification card.        Morales Diaz explained he
    obtained the card from an office building in Houston he thought was the
    Texas Department of Public Safety. He stated he paid $100 for the card
    and was advised he could use it to operate a motor vehicle and open
    bank accounts. The officer asked Morales Diaz if he was in the United
    States legally. Morales Diaz initially responded he legally immigrated to
    the United States, but later admitted he was residing here without
    authorization.    After this admission, the officer placed Morales Diaz
    under arrest. Morales Diaz continued to deny knowledge of any illegality
    with the identification card. The officer transported Morales Diaz to the
    county jail and contacted Immigration and Customs Enforcement (ICE).
    ICE began removal proceedings.            The county attorney filed a trial
    information charging Morales Diaz with forgery as a class “D” felony
    under Iowa Code section 715A.2(1)(d) and (2)(a) (2013).
    Morales Diaz was released on bail. He retained counsel. The court
    continued the state forgery proceedings against him several times to give
    him time to resolve his federal immigration status.       On July 8, 2014,
    however, he failed to appear at an immigration hearing in Omaha,
    Nebraska. He also failed to appear at a scheduled plea hearing in Iowa
    4
    state court.   After a Tama County court issued an arrest warrant, he
    turned himself in and was held in the county jail.
    Morales Diaz’s counsel visited him in jail.     According to Morales
    Diaz, his counsel gave him a written guilty plea to sign, but did not
    advise him of any of the immigration consequences of pleading guilty.
    According to his counsel, counsel advised Morales Diaz that because he
    missed his immigration hearing he was “probably going to be deported no
    matter what happened.” Counsel stated Morales Diaz responded that he
    “just wanted to get this over with,” before he signed the written plea of
    guilty to aggravated misdemeanor forgery under Iowa Code section
    715A.2(2)(b). Consistent with the plea agreement, the court imposed a
    two-year suspended sentence.        Nevertheless, based on this conviction,
    federal authorities subsequently removed him from the United States to
    Mexico.
    Morales Diaz returned to the United States in Department of
    Homeland Security custody and filed for postconviction relief in district
    court. He asserted he was denied his right to the effective assistance of
    counsel under the Sixth Amendment to the U.S. Constitution. He argued
    his counsel should have advised him that forgery under Iowa Code
    section 715A.2(2)(b) constituted an “aggravated felony” under 8 U.S.C.
    § 1101(a)(43)(R) (2012).    In turn, he argued his counsel should have
    advised him that pleading guilty to an aggravated felony has severe,
    automatic,     and   irreversible   immigration   consequences,   including
    foreclosure of “cancellation of removal,” a proceeding by which the
    Attorney General may adjust the status of a removable alien to that of a
    lawful permanent resident. See 8 U.S.C. § 1229b(b)(1)(C). Additionally,
    he argued his counsel should have advised him that his physical
    presence in the United States for more than ten years and his good moral
    5
    character would have allowed him to seek this relief if he could establish
    his removal would result in “exceptional and extremely unusual
    hardship” to his daughter. 
    Id. § 1229b(b)(1)(A)–(D).
    Because his counsel
    failed to advise him of these immigration consequences of his plea,
    Morales Diaz argued he should be allowed to withdraw his plea and
    defend the charges at trial.
    The district court agreed and vacated his conviction.          The court
    found Morales Diaz’s counsel had a duty to advise him of the clear and
    foreseeable immigration consequences of pleading guilty, not just that
    there was a possibility he could be removed.       It found Morales Diaz’s
    counsel failed to perform this duty and Morales Diaz could prove
    prejudice because, based on his counsel’s failure, he gave up his right to
    a trial, which he would not have done had he known that pleading guilty
    to forgery would permanently separate him from his daughter.
    The State appealed, and the court of appeals reversed. The court
    of appeals found counsel for Morales Diaz had no duty to advise him of
    the specific immigration consequences of his plea, and in the alternative,
    that he could not show he was prejudiced by counsel’s failure.             We
    granted further review.
    II. Standard of Review.
    Although “[w]e typically review postconviction relief proceedings on
    error,”   we   review   ineffective-assistance-of-counsel   claims    de novo.
    Ledezma v. State, 
    626 N.W.2d 134
    , 141 (Iowa 2001); see also State v.
    Schlitter, 
    881 N.W.2d 380
    , 388 (Iowa 2016).       “Ineffective-assistance-of-
    counsel claims require a showing by a preponderance of the evidence
    both that counsel failed an essential duty and that the failure resulted in
    prejudice.” 
    Schlitter, 881 N.W.2d at 388
    .
    6
    III. Analysis.
    The right to counsel guaranteed by the Sixth Amendment to the
    U.S. Constitution is a “right to the effective assistance of counsel.” 1
    Strickland v. Washington, 
    466 U.S. 668
    , 686, 
    104 S. Ct. 2052
    , 2063
    (1984) (quoting McMann v. Richardson, 
    397 U.S. 759
    , 771 n.14, 
    90 S. Ct. 1441
    , 1449 n.14 (1970)). This right is not limited to trial. Instead, the
    Sixth Amendment right to counsel “at least” extends to all critical stages
    of the prosecution after the initiation of formal proceedings.                     See
    Rothgery v. Gillespie County, 
    554 U.S. 191
    , 212, 
    128 S. Ct. 2578
    , 2591
    (2008). Thus, the right to counsel plainly extends to that critical stage of
    the prosecution in which a defendant considers pleading guilty to the
    charges.     See 
    McMann, 397 U.S. at 770
    –71, 90 S. Ct. at 1448–49.
    Counsel’s duty at this stage is no less important than it is at trial. See
    Missouri v. Frye, 
    566 U.S. 133
    , 143–44, 
    132 S. Ct. 1399
    , 1407 (2012). It
    is a duty to provide competent and thorough advice, to represent the
    client’s interests with vigor and diligence, and to fulfill those “anxious
    responsibilities” with which we have entrusted the bar. Schware v. Bd. of
    Bar   Exam’rs,     
    353 U.S. 232
    ,    247,    
    77 S. Ct. 752
    ,    760    (1957)
    (Frankfurter, J., concurring). It is a duty that is embodied in the very
    name the profession has appropriated: to counsel. Moreover, it is a duty
    that exists separate from the colloquy engaged in by the district court
    1Article  I, section 10 of the Iowa Constitution also guarantees a right to the
    effective assistance of counsel. See Iowa Const. art. I, § 10; 
    Schlitter, 881 N.W.2d at 388
    . However, Morales Diaz specifically raised only the U.S. Constitution in his
    application for postconviction relief and in his arguments on appeal. Therefore, we will
    confine our analysis to the U.S. Constitution. See State v. Prusha, 
    874 N.W.2d 627
    ,
    629–30 (Iowa 2016); State v. Iowa Dist. Ct., 
    801 N.W.2d 513
    , 518 n.2 (Iowa 2011).
    Doing so, we reserve the right to interpret the Iowa Constitution more stringently than
    its federal counterpart in future cases. See State v. Short, 
    851 N.W.2d 474
    , 491–92
    (Iowa 2014).
    7
    under Iowa Rule of Criminal Procedure 2.8. See State v. Rhodes, 
    243 N.W.2d 544
    , 545 (Iowa 1976) (“The court’s inquiry is intended to
    supplement but not supplant advice of counsel.”).
    An attorney fails to fulfill this duty when the attorney fails to
    advise a client of the immigration consequences of a plea. See Padilla v.
    Kentucky, 
    559 U.S. 356
    , 367–68, 
    130 S. Ct. 1473
    , 1482 (2010).
    Immigrant clients rely on criminal defense counsel to advise them of
    immigration consequences because these consequences are of great,
    even overwhelming, importance to them. See 
    id. at 368,
    130 S. Ct. at
    1483.     Changes in immigration law have increased enforcement and
    reduced discretion in the event of a criminal conviction. See 
    id. at 363–
    64, 130 S. Ct. at 1480
    . These changes have shifted the responsibility to
    protect immigrants from potential inequities in the immigration system
    to criminal defense counsel. See Christopher N. Lasch, “Crimmigration”
    and the Right to Counsel at the Border Between Civil and Criminal
    Proceedings, 
    99 Iowa L
    . Rev. 2131, 2149–50 (2014); see also Andrés Dae
    Keun Kwon, Comment, Defending Criminal(ized) “Aliens” after Padilla:
    Toward a More Holistic Public Immigration Defense in the Era of
    Crimmigration, 63 UCLA L. Rev. 1034, 1057 (2016). In response, many
    new resources have emerged to assist the defense bar in this growing
    responsibility, including quick-access charts, frequently asked questions
    and answers, opportunities for legal training, and free consultations with
    immigration experts.    See Immigrant Def. Project, Resources: Criminal
    Defense Attorneys, https://www.immigrantdefenseproject.org/defender-
    resources/ (last visited June 2, 2017); Immigrant Legal Res. Ctr., Books
    and Trainings, https://www.ilrc.org/store (last visited June 2, 2017);
    Nat’l Ass’n of Criminal Def. Lawyers, Immigration Practice Advisories and
    Additional Res., https://www.nacdl.org/ResourceCenter.aspx?id=21195
    8
    (last visited June 2, 2017); Univ. of Iowa, Advanced Immigration Law and
    Policy Project, https://ailp.law.uiowa.edu/crimmigration-project (last
    visited June 2, 2017).     As states and localities struggle to define their
    role, desired or not, as partners in immigration enforcement, see
    Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 
    95 Tex. L
    . Rev. 245, 247 (2016), defense counsel must embrace his or her new
    role as a “crimmigration” attorney, Juliet Stumpf, The Crimmigration
    Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367,
    381 (2006), if counsel is to provide effective assistance.
    To     establish   counsel    provided    constitutionally   deficient
    representation, the defendant must establish counsel’s representation
    “fell below an objective standard of reasonableness.” 
    Strickland, 466 U.S. at 688
    , 104 S. Ct. at 2064; see also State v. Clay, 
    824 N.W.2d 488
    , 495
    (Iowa 2012).     We look to “the practice and expectations of the legal
    community” in defining this standard.       
    Padilla, 559 U.S. at 366
    , 130
    S. Ct. at 1482; see also Dempsey v. State, 
    860 N.W.2d 860
    , 868 (Iowa
    2015).     If the defendant makes the requisite showing under this first
    prong, the defendant must then show that, but for counsel’s ineffective
    assistance, he or she “would not have pleaded guilty and would have
    insisted on going to trial.” Hill v. Lockhart, 
    474 U.S. 52
    , 59, 
    106 S. Ct. 366
    , 370 (1985); see also State v. Straw, 
    709 N.W.2d 128
    , 138 (Iowa
    2006). This does not mean the defendant must show he or she would
    have prevailed at trial.     Rather, the defendant must only show the
    “decision to reject the plea bargain would have been rational under the
    circumstances.” 
    Padilla, 559 U.S. at 372
    , 130 S. Ct. at 1485.
    A. Constitutional Deficiency. Morales Diaz argues his counsel
    should have advised him of the immigration consequences of the plea. If
    we accept counsel’s testimony, counsel advised Morales Diaz that
    9
    whether he pled or went to trial, he would “probably” be deported. We
    must decide whether the Constitution required more.        In doing so, we
    examine, in light of Padilla’s holding, the State’s argument that
    Morales Diaz’s counsel was not required to advise him any more than
    that deportation was possible and Morales Diaz’s argument that trial
    counsel’s advice was deficient because he was not told a guilty plea
    meant deportation was virtually certain under the immigration statute.
    In Padilla, the Court addressed these arguments once it corrected
    the course we and many other courts had followed to categorically
    exclude immigration consequences from counsel’s duty to advise
    noncitizen defendants of the legal consequences of a guilty plea.       See
    
    Padilla, 559 U.S. at 366
    , 130 S. Ct. at 1482; see also Perez v. State, 
    816 N.W.2d 354
    , 360 (Iowa 2012). Once the Padilla Court held the right to
    effective counsel included a duty to advise a defendant of the risk of
    deportation, it turned to the facts of the case to determine if the advice
    given fell below the standard of reasonableness. 559 U.S. at 
    366, 130 S. Ct. at 1482
    . Under those facts, the client, José Padilla, was advised
    by counsel that his conviction would not result in his removal from the
    country. Id. at 
    368, 130 S. Ct. at 1483
    . The Court found this advice was
    deficient because the immigration statute provided for deportation based
    on certain criminal convictions, and a conviction for the crime Padilla
    pled guilty to was clearly and explicitly included under the statute. 
    Id. at 368–69,
    130 S. Ct. at 1483. Additionally, the statute essentially offered
    no relief from deportation based on such a conviction.      See 
    id. Thus, under
    the law, any noncitizen’s removal would be “practically inevitable”
    after pleading guilty to a removable offense. Id. at 363–
    64, 130 S. Ct. at 1480
    . This consequence supported the imposition of the duty on counsel
    to provide proper advice. 
    Id. 10 Accordingly,
    defense counsel under Padilla has a responsibility to
    advise noncitizen defendants whether a conviction for the crime that is
    the subject of the guilty plea agreement is also a crime that renders a
    noncitizen deportable. In addressing the nature of the advice, the Court
    indicated if the crime clearly falls under the statute, counsel must
    provide equally clear advice that deportation is a consequence of pleading
    guilty.   See 
    id. at 369,
    130 S. Ct. at 1483.     If the crime is not clearly
    within the immigration statute, counsel must advise that a plea of guilty
    may result in adverse immigration consequences. See 
    id. It must
    be observed that deportation is a broad concept, and the
    adverse immigration consequences of a criminal conviction to a
    noncitizen under the immigration statute are not limited to removal from
    this country. In addition to removal from the country, the immigration
    statute also carries consequences associated with removal, such as
    exclusion, denial of citizenship, immigration detention, and bar to relief
    from removal. See generally 8 U.S.C. § 1182 (“Inadmissible aliens”); 
    id. § 1226
    (“Apprehension and detention of aliens”); 
    id. § 1227
    (“Deportable
    aliens”); 
    id. § 1229b
    (“Cancellation of removal; adjustment of status”).
    Thus, in addition to deciding if the conviction is a deportable conviction
    under the statute, a question also exists whether or not counsel must
    describe the associate statutory consequences.           In other words, the
    question is whether counsel must not only consider if the conviction is a
    deportable conviction under the statute, but must also explain the
    meaning     of   deportation   by   identifying    the    specific   statutory
    consequences.
    We find the “clear” and “unclear” dichotomy in Padilla relates only
    to whether the crime charged is a crime covered under the immigration
    statute. In turn, the distinction relates to the likelihood that immigration
    11
    consequences will follow a conviction of the crime. If the crime faced by
    a defendant is clearly covered under the immigration statute, counsel
    must advise the defendant that the immigration consequences will
    almost certainly follow.         If the crime is not clearly covered under the
    statute,        counsel   must    advise    the    defendant       that    immigration
    consequences may follow. Yet, the more vexing question is the extent to
    which counsel must advise of the specific consequences beyond
    deportation. We must answer this question to complete the analysis in
    Padilla and address the State’s argument that Morales Diaz’s counsel
    was not required to advise him on anything other than the risk of
    deportation, as well as Morales Diaz’s argument that he was entitled to
    complete advice on the foreseeable immigration consequences of his
    plea. 2
    We recognize Padilla has been read to impose a duty on counsel
    only to warn of the risk of deportation, not of other consequences such
    as foreclosure of cancellation of removal or a permanent bar on reentry.
    See, e.g., Rosario v. State, 
    165 So. 3d 672
    , 673 (Fla. Dist. Ct. App. 2015)
    (per curiam) (finding Padilla does not require advice on “[t]he possibility
    for an adjustment in status”); Garcia v. State, 
    425 S.W.3d 248
    , 260
    (Tenn. 2013) (finding Padilla does not require advice on “future eligibility
    to immigrate legally to the United States” but noting trial counsel’s
    extensive research and advice would satisfy any such duty). Yet, we do
    2In
    his application for postconviction relief, Morales Diaz alleged his conviction
    rendered him ineligible for cancellation of removal and further alleged his attorney
    failed to advise him of the clear immigration consequences of his plea. On appeal, he
    argued his attorney breached his duty by failing to inform him of the “severity of the
    consequences and the ability to avoid those consequences.” The State argued on appeal
    that the district court erred in finding counsel for Morales Diaz was “ineffective under
    Padilla in failing to give correct or complete immigration advice.”
    12
    not believe the Court intended to create a new standard for determining
    effective assistance of counsel or to limit the advice of counsel to exclude
    a full explanation of the various immigration consequences of pleading
    guilty.   Instead, counsel after Padilla is held to the same standard
    counsel was before Padilla: to provide objectively reasonable assistance
    as measured by prevailing professional norms.       See Commonwealth v.
    Lavrinenko, 
    38 N.E.3d 278
    , 290 (Mass. 2015) (“[T]he failure of a criminal
    defense attorney to make a reasonable inquiry of the client regarding his
    or her citizenship and immigration status is sufficient to satisfy the
    deficient performance prong of the ineffective assistance analysis.”); State
    v. Favela, 
    343 P.3d 178
    , 182 (N.M. 2015) (“A defense attorney’s failure to
    advise a client of the ‘specific immigration consequences of pleading
    guilty, including whether deportation would be virtually certain’ renders
    that attorney’s performance deficient, which satisfies the first prong of
    the Strickland test.” (quoting State v. Paredez, 
    101 P.3d 799
    , 805 (N.M.
    2004))); see also Lindsay C. Nash, Considering the Scope of Advisal Duties
    Under Padilla, 33 Cardozo L. Rev. 549, 576 (2011) (“[D]efense attorneys
    must investigate and research the law using available resources and
    then advise noncitizen defendants about immigration consequences at
    the level of specificity that research permits.”).      Counsel’s duty as
    interpreted in Padilla does not depend on an assessment of the clarity of
    the consequences or on categorizing them as strictly related to
    deportation.   Instead, consistent with the approach we have always
    taken, counsel’s duty depends on society’s expectations of its attorneys.
    In Padilla, the U.S. Supreme Court looked to “norms of practice as
    reflected in American Bar Association standards and the like” to measure
    counsel’s performance.     Padilla, 559 U.S.at 
    366, 130 S. Ct. at 1482
    (quoting 
    Strickland, 466 U.S. at 688
    , 104 S. Ct. at 2065). Consulting the
    13
    current version of the American Bar Association guidelines now, we find
    they recommend the following:
    (a) Defense counsel should determine a client’s
    citizenship and immigration status, assuring the client that
    such information is important for effective legal
    representation and that it should be protected by the
    attorney-client privilege. Counsel should avoid any actions
    that might alert the government to information that could
    adversely affect the client.
    (b) If defense counsel determines that a client may not
    be a United States citizen, counsel should investigate and
    identify particular immigration consequences that might
    follow possible criminal dispositions.       Consultation or
    association with an immigration law expert or knowledgeable
    advocate is advisable in these circumstances. Public and
    appointed defenders should develop, or seek funding for,
    such immigration expertise within their offices.
    (c) After determining the client’s immigration status
    and potential adverse consequences from the criminal
    proceedings, including removal, exclusion, bars to relief from
    removal, immigration detention, denial of citizenship, and
    adverse consequences to the client’s immediate family,
    counsel should advise the client of all such potential
    consequences and determine with the client the best course
    of action for the client’s interests and how to pursue it.
    (d) If a client is convicted of a removable offense,
    defense counsel should advise the client of the serious
    consequences if the client illegally returns to the United
    States.
    ABA Standards for Criminal Justice: Prosecution Function and Def.
    Function 4-5.5 (4th ed. 2015) [hereinafter ABA Standards]. We recognize
    these recommendations are demanding, but we do not find them too
    onerous a burden to place on the professional advisers employed to
    represent their clients’ best interests.
    Additionally, we observe a proliferation of reference guides since
    the Padilla decision.    See, e.g., Am. Immigration Council, Aggravated
    Felonies: An Overview (2016) [hereinafter AIC, Aggravated Felonies];
    Immigrant    Def.   Project,   Sample      Aggravated   Felony   Case     Law
    Determinations      (2012)     [hereinafter    IDP,     Aggravated      Felony
    14
    Determinations]; Univ. of Iowa Coll. of Law Advanced Immigration Law &
    Policy, Immigration Consequences for Iowa Criminal Statutes (2015)
    [hereinafter AILP, Iowa Immigration Consequences].           Regarding Morales
    Diaz’s case, even a brief review of these guides reveals the crime of
    aggravated misdemeanor forgery is an aggravated felony for purposes of
    immigration law if it results in a sentence of a year or more. See AILP,
    Iowa Immigration Consequences 220–21 (identifying conviction under
    Iowa Code section 715A.2(2)(b) as an aggravated felony); IDP, Aggravated
    Felony   Determinations     C-57   to   C-58    (compiling    cases   in    which
    convictions of forgery were determined to be aggravated felonies). They
    also reveal that a conviction of an aggravated felony has immediate and
    far-reaching immigration consequences.           See AILP, Iowa Immigration
    Consequences 220; AIC, Aggravated Felonies 2–4.
    Aided by these guides and turning to the clear language of the
    immigration statute, we find these consequences include, to begin with,
    rendering     any   alien    immediately       removable.       See    8 U.S.C.
    § 1227(a)(2)(A)(iii). They also include subjecting the alien to mandatory
    detention during expedited removal proceedings. See 
    id. §§ 1226(c)(1)(b),
    1228(a)(2).    They include foreclosure of a cancellation of removal
    proceeding, see 
    id. § 1229b
    (b)(1)(C), and they include a permanent bar on
    legal reentry with narrow exception, see 
    id. § 1182(a)(9)(ii)(I).
             Finally,
    they include a fine and twenty years of incarceration if the alien tries to
    reenter the country and is apprehended. See 
    id. § 1326(b)(2).
    Our review of these professional norms shows us that counsel has
    an obligation to inform his or her client of all the adverse immigration
    consequences that competent counsel would uncover. We do not believe
    clients expect their counsel to only advise them that the chances of
    deportation are certain or possible. See 
    Padilla, 559 U.S. at 368
    , 
    130 15 S. Ct. at 1483
    . Instead, clients expect their counsel to conform to the
    “practice and expectations of the legal community,” id. at 
    366, 130 S. Ct. at 1482
    , which in this case is an expectation enhanced by vast
    professional support.      Whether or not deportation consequences are
    certain or possible under a criminal charge, the specific statutory
    consequences need to be explained with reasonable clarity so a full and
    measured decision to plead guilty can be made.             This approach is
    integrated into the ABA guidelines, which instruct counsel to determine
    and advise of the “potential adverse consequences from the criminal
    proceedings, including removal, exclusion, bars to relief from removal,
    immigration detention, denial of citizenship, and adverse consequences
    to the client’s immediate family.” ABA Standards 4-5.5(c). Certainly, any
    person contemplating a plea of guilty to a crime that could lead to
    deportation would want to know the full meaning and consequences of
    deportation.
    In this case, counsel for Morales Diaz did not inform him of the
    direct, severe, and certain immigration consequences of pleading guilty
    to forgery. Instead, counsel relied on an erroneous belief that missing an
    immigration hearing foreclosed all relief. See 8 U.S.C. § 1229a(b)(5)(C)(i).
    Even if removal was highly likely following Morales Diaz’s failure to
    appear, see 
    id. § 1229a(b)(5)(A),
    counsel never mentioned the crime
    constituted an aggravated felony, see 8 U.S.C. § 1101(a)(43)(R); Iowa
    Code § 715A.2(2)(b); 
    id. § 903.1(2),
    and never attempted to explain the
    sweeping   ramifications    of   that   classification.   The   practice   and
    expectations of the legal community, and its clients, reveals counsel has
    a duty to provide that information. Therefore, counsel for Morales Diaz
    provided constitutionally deficient representation by not doing so.
    16
    B. Prejudice.         Having        established   counsel      provided
    constitutionally deficient performance, Morales Diaz must still show this
    deficiency resulted in prejudice to succeed on his claim of ineffective
    assistance of counsel.     Morales Diaz testified that had his counsel
    informed him of the immigration consequences of his plea, he never
    would have entered it. We must decide whether this would have been a
    rational choice. See 
    Padilla, 559 U.S. at 372
    , 130 S. Ct. at 1485.
    The State asserts Morales Diaz is unable to show prejudice for two
    basic reasons. First, the State notes he was an unauthorized alien and
    was subject to deportation before he pled guilty, just as he was after he
    pled guilty. The State argues any relief from deportation under federal
    law based on his length of stay and family ties in the United States was
    too speculative. Second, the State argues the evidence against Morales
    Diaz overwhelmingly supported a conviction to the charged offense, and
    the plea to the lesser offense was rational even if he had been informed of
    the immigration consequences because it afforded him an opportunity to
    obtain temporary release and make arrangements for his daughter before
    deportation proceedings commenced.
    Generally, a decision to reject a plea bargain may be rational for
    many reasons. The defendant could have a legal or factual defense to the
    crime charged. See 
    Hill, 474 U.S. at 59
    , 106 S. Ct. at 370–71; Kovacs v.
    United States, 
    744 F.3d 44
    , 53 (2d Cir. 2014). The defendant could be
    hoping to obtain a better plea bargain, see Padilla v. Commonwealth, 
    381 S.W.3d 322
    , 330 (Ky. Ct. App. 2012), or leniency at sentencing, see
    Commonwealth v. Gordon, 
    974 N.E.2d 645
    , 654 (Mass. App. Ct. 2012).
    The defendant could lack all of these things, but nevertheless rationally
    decide to “roll the dice” if presented with a plea deal certain to be almost
    as damaging as a loss at trial. See DeBartolo v. United States, 
    790 F.3d 17
    775, 780 (7th Cir. 2015); see also Hernandez v. United States, 
    778 F.3d 1230
    , 1234 (11th Cir. 2015); United States v. Orocio, 
    645 F.3d 630
    , 645
    (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States,
    
    568 U.S. 342
    , 
    133 S. Ct. 1103
    (2013).
    The State essentially claims unauthorized aliens cannot be
    prejudiced under a Sixth Amendment challenge because they are already
    subject to removal. We reject this claim for several reasons. There is a
    vast difference for an unauthorized alien between being generally subject
    to removal and being convicted of a crime that subjects an unauthorized
    alien to automatic, mandatory, and irreversible removal.         Additionally,
    removal is not a foregone conclusion for every unauthorized alien.
    Immigration policy is subject to change, as is enforcement. Furthermore,
    unauthorized aliens may seek lawful permanent resident status under
    the law if they meet certain qualifications. 8 U.S.C. § 1229b(b)(1)(A)–(D).
    A plea of guilty to certain offenses can foreclose this process.      See 
    id. § 1229b
    (b)(1)(C). Finally, an unauthorized alien may rationally choose to
    reject a plea deal for the same reasons a U.S. citizen might.             See
    Daniel A. Horwitz,   Actually,    Padilla   Does   Apply   to   Undocumented
    Defendants, 19 Harv. Latino L. Rev. 1, 15–16 (2016).
    We find it unnecessary to decide if “ ‘overwhelming evidence’ of
    guilt” forecloses a showing of prejudice. See Lee v. United States, 
    825 F.3d 311
    , 314 (6th Cir.), cert. granted, 
    85 U.S.L.W. 3284
    (U.S. Dec. 14,
    2016) (No. 16–327). The State charged Morales Diaz with forgery under
    Iowa Code section 715A.2(2)(4), for possession of a document required for
    or as evidence of authorized stay in the United States.          Morales Diaz
    asserts various evidentiary issues and challenges the State’s ability to
    meet its burden of proof.        Additionally, we note the crime of forgery
    requires a specific intent to defraud or injure another or have knowledge
    18
    of the facilitation of a fraud or injury, Iowa Code § 715A.2(1), and
    Morales Diaz maintained he believed the identification card he obtained
    in Texas was legitimate.       We find the evidence of guilt is not
    overwhelming.
    We conclude the record supports the finding of prejudice.
    Morales Diaz has a daughter in this country. By pleading guilty, he all
    but guaranteed he would never be physically present in her life to help
    her grow. If he had not pled guilty, he could have defended himself at
    trial. He could have asserted various evidentiary issues and challenged
    the State’s ability to prove all elements of the charge.   See Iowa Code
    § 715A.2(1)(d). He could have hoped for a better plea bargain by holding
    out for a plea of guilty to simple misdemeanor possession of a
    fraudulently altered identification card. See 
    id. § 321.216(1).
    Finally, he
    could have otherwise rationally decided to hold the State to its burden of
    proof.    See 
    DeBartolo, 790 F.3d at 779
    –80.     Cancellation of removal
    under 8 U.S.C. § 1229b was available to him—until he pled guilty. Like
    the district court, we are not convinced Morales Diaz would have “just
    wanted to get this over with” had counsel provided effective assistance by
    advising him of the immigration consequences a plea entailed.
    IV. Conclusion.
    According to the State, Roberto Morales Diaz was found in
    possession of a fake identification card. Based on this information, the
    State charged him with a crime carrying a mandatory term of five years’
    incarceration. On advice from counsel, he pled guilty to a crime with a
    suspended sentence. In doing so, he gave up the chance to stay in the
    country where he has resided peacefully for the past decade. Instead, he
    was promptly and permanently removed to Mexico.              We conclude
    Morales Diaz would not have accepted this plea agreement if he had been
    19
    provided the effective assistance of counsel to which he was entitled
    under the Sixth Amendment to the U.S. Constitution.          Therefore, we
    must vacate the court of appeals, affirm the district court, and remand
    this case to allow him to withdraw his plea and stand for trial.
    DECISION OF COURT OF APPEALS VACATED; DISTRICT
    COURT JUDGMENT AFFIRMED AND CASE REMANDED.
    All justices concur except Mansfield, Waterman, and Zager, JJ.,
    who concur specially.