                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0988
                               Filed June 3, 2020


MONUE FORKPAYEA GEIMAH,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Poweshiek County, Crystal S. Cronk,

Judge.



      Monue Forkpayea Geimah appeals the denial of his application for

postconviction relief. AFFIRMED.




      C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.




      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
                                         2


BOWER, Chief Judge.

      Monue Forkpayea Geimah appeals the denial of his application for

postconviction relief (PCR). He maintains plea counsel was ineffective in failing to

advise him of the immigration consequences of pleading guilty to theft in 2017. On

our de novo review, we conclude plea counsel did not inform Geimah “of all the

adverse immigration consequences that competent counsel would uncover,”1 but

Geimah failed to prove he would not have pleaded guilty had he been adequately

advised. We therefore affirm.

I. Background Facts and Proceedings.

      On February 29, 2016, Geimah was charged with one count of theft in the

third degree for “depositing checks with insufficient funds and receiving $841.00.”

On December 8, 2016, Geimah filed a written guilty plea to one count of theft in

the fourth degree. This written guilty plea contained the following warning:

      Immigration Consequences. If you are not a citizen of the United
      States, a conviction may have immigration consequences.
      Immigration law is a specialized field of law. [Plea counsel] is not an
      immigration lawyer and you should seek the consultation of an
      immigration specialist if you want advice regarding the immigration
      consequences of your plea.

Geimah waived his right to be present at sentencing. On January 5, 2017, the

district court entered judgment and Geimah was sentenced to one year in the

Poweshiek County Jail, which was suspended. He was placed on probation for

one year and ordered to pay a fine, surcharges, and costs.




1Morales Diaz v. State, 896 N.W.2d 723, 732 (Iowa 2017) (applying standard of
practice enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010)).
                                            3


       On January 28, 2019, Geimah filed a PCR application, asserting his plea

counsel provided ineffective assistance by not adequately explaining the

immigration consequences of his guilty plea.

       Trial was held on May 15. Geimah, his wife, Melissa, and plea counsel

testified at the trial. Geimah testified that he was born in, and is a citizen of, Liberia,

West Africa. He legally immigrated to the United States in 2010. Geimah testified

his father and his four half-siblings live in the United States, he is married to a

United States citizen with whom he has two children. He stated he knows no one

in Liberia. Geimah also testified that in March 2018 he turned himself in to

authorities in Minnesota for an outstanding warrant for a driving while intoxicated

charge. He testified he had completed the requirements of that case, and the

charge was dropped. However, as he was being released, he was seized by

Immigration and Customs Enforcement (ICE) and was placed in detention.

       Geimah testified he contacted his plea counsel asking that she seek

modification to the Poweshiek County judgment entry, and counsel filed a motion

to set aside and re-sentence on April 17, 2018. The district court set aside the

sentence, vacated any prison time, and sentenced Geimah to pay a fine, statutory

surcharges, court costs, and victim restitution. Geimah believed he would be

released from immigration detention if this amendment were made to the judgment

entry. However, he remained in immigration detention and was subsequently

ordered removed and ineligible to return.2


2 On June 28, 2018, a federal immigration court ordered Geimah be removed from
the United States to Liberia. The immigration court based this removal on two
separate sections of the Immigration and Nationality Act (“INA”). First, the
immigration court found that Geimah was removable because he violated INA
                                          4


       Geimah testified his plea counsel never asked about his immigration status,

never asked about his criminal history, and never discussed the potential

immigration consequences of pleading guilty. Geimah testified that had he known

he would be deported and would not be eligible to return to the United States, he

would never have pleaded guilty because he would be separated from his children.

       Melissa testified all of Geimah’s family with whom he has any relationship

are in the United States, she and Geimah have two children together, including

one who has a heart condition, and Geimah has always been involved with the

children’s care. She was asked whether Geimah would have pleaded guilty in the

theft case had he known about the immigration consequences that were going to

result from it and she replied, “I do not believe so. . . . Because we—we want—

we want to remain as a family here in the United States.”

       Plea counsel testified she knew Geimah was not a United States citizen:

       I recall him—You know, my general thing is the second that I found
       out that he is not—first not—You could tell that English was not his
       first language, you know. We had a brief conversation. That’s when
       I found out he was from Liberia, and he had—he did ask about

section 237(a)(2)(E)(ii) [8 U.S.C. § 1227(a)(2)(E)(ii)] because he was “enjoined
under a protection order and has been determined to have engaged in conduct in
violation of that order that involves protection against credible threats of violence,
repeated harassment, or bodily injury to that person or persons for whom the
protection order was issued[.]” Specifically, the immigration court found that
Geimah’s wife, Melissa, asked for and received an order of protection against
Geimah based on “physical abuse, sexual abuse, and threats, as well as fear for
physical safety[,]” and that Geimah violated this order of protection when he went
to Melissa’s home. This violation subjected Geimah to removal from the United
States.
        The immigration court also found Geimah was independently removable
under INA section 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] because he was
convicted of two crimes of moral turpitude: the January 5, 2017 Poweshiek County
conviction for theft in the fourth degree (challenged here) and a February 14, 2017
Black Hawk County conviction for theft in the fifth degree (entered after a bench
trial).
                                   5


immigration. I had indicated I don’t know a lot about immigration.
Generally, anything can get you deported and that immigration takes
into consideration different factors, and clearly if he was in this
country illegally that he would most certainly be deported. I—I recall
him saying that he had a green card at that conversation, and I had
again told him I am not an immigration attorney. He should speak
with an immigration attorney for more specifics. He indicated he had
a case going on somewhere else and that he would talk to that
attorney.
        Q. Do you remember where that other pending case was?
A. No, he didn’t tell me. I don’t believe he told me at that point where
the other county case was or anything like that.
        Q And— A. He was with his wife that day as well.
        Q. —And a similar question. Did he ever mention who the
attorney in that other case was? A. No.
        Q. And as part of your representation of Mr. Geimah, did you
ever ask him what his criminal history in the United States was?
A. He told me he had that case. I think that he ended up picking up
another charge while my case was pending because he was jailed,
and his wife attended that pretrial conference. I think the only other
specific that I knew about was the offense that he was jailed for. I
believe that one was out of Black Hawk County during the pendency
of my representation with him, and I almost thought that was like a
domestic abuse charge or something like that. But other than me
getting his presence excused because he was currently in jail, that
was the extent of my communication regarding that charge, and that
information came to me through his wife.
        Q. And you were aware that Mr. Geimah was from Liberia? I
don’t recall if you said whether you knew what his immigration in the
United States was, so did you ever find out what his immigration
status in the United States was during your representation? A. I
believe he had told me that he had a green card and that he was
currently married to his wife, who is a U.S. citizen. That—That’s
pretty much what I remember, and that was from that very first
conversation that, you know, I tried to make clear I’m not an
immigration attorney. I don’t know exactly what consequences you
could ultimately be facing, you know. Those could be up—Those
could be deportation. I mean, literally, that’s my spiel.
        ....
        Q. Did you personally ever consult with any immigration
attorneys as part of your representation of Mr. Geimah prior to the
guilty plea and sentencing? A. At the time that his case was going
on, that was not the current standard so, you know, I did not.
        ....
        Q. And prior to Mr. Geimah being issued his original sentence
in the case, did you and he ever discuss the possibility that the
Poweshiek County case would result in him never being able to
                                         6


      legally reenter the United States if he did get deported? A. No. It
      was literally deportation is the only word I said and speak to an
      immigration attorney.

      On cross examination, trial counsel testified further:

      Q. [Counsel], when you spoke to Mr. Geimah about potential adverse
      immigration consequences and informed him that he needed to
      speak to an immigration attorney, was it your understanding that he
      had an immigration attorney at that time? A. The way that he said
      he had another attorney and basically would ask them made me feel
      like he would get his questions answered, and since he didn’t bring
      it up anymore, I thought he got his questions answered. He never
      specifically—To be a hundred percent fair and honest, he never
      specifically told me that that was an immigration attorney, but the
      context was he would answer or ask the other attorney, and then he
      never brought it up.

      On redirect, Geimah’s counsel asked:

             Q. [Counsel], regarding the other attorney that Mr. Geimah
      mentioned to you about immigration advice, did you ever attempt to
      follow up with that other attorney to see if Mr. Geimah’s questions
      had been answered? A. No. He didn’t tell me what the attorney was
      even for. I didn’t—At that time I didn’t know he had criminal charges
      pending someplace else. I still am not certain that he did, but I—he
      didn’t tell me who it was or what it was for, and I really didn’t,
      necessarily, think that it was, you know, my business.
             Q. Would it be accurate to also say, then, that you didn’t ask
      him for any more details about who the attorney was or what the
      other attorney’s purpose was? A. That would be fair.

      The district court entered its ruling on May 16, 2019, finding plea counsel

breached no duty because she

      discussed the case with Applicant and negotiated a plea agreement
      whereby Applicant was not placed into custody, which was his
      desired result. [Counsel] also put him on notice of the possible
      consequences, including deportation, and advised him to seek
      advice from immigration counsel.              [Counsel] confirmed this
      notification in the written guilty plea sent to Applicant.

The court found plea counsel’s “testimony regarding her advisement to [Geimah]

regarding possible deportation is credible.”
                                           7


       The court found Geimah’s testimony that he had no awareness of the

possible immigration consequences was not credible because “[t]his case was not

his first involvement with the U.S. court system; he had prior charges in Minnesota,

as well as in Black Hawk County, Iowa,” and he was “represented by counsel in all

of the criminal cases.”

       Geimah appeals.

II. Scope and Standard of Review.

       We review PCR proceedings for correction of legal error unless they raise

constitutional issues, in which case our review is de novo. Perez v. State, 816

N.W.2d 354, 356 (Iowa 2012). A claim of ineffective assistance of counsel raises

constitutional issue and thus our review is de novo. Morales Diaz, 896 N.W.2d at

727.

III. Discussion.

       “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.” Id. (citation omitted). An attorney’s performance

is constitutionally deficient when the attorney fails to advise the defendant on the

immigration consequences of pleading guilty.          Padilla, 559 U.S. at 368–69;

Morales Diaz, 896 N.W.2d at 729.               The applicant must show counsel’s

performance “fell below an objective standard of reasonableness.” Morales Diaz,

896 N.W.2d at 728 (citation omitted). In defining this standard, “[w]e look to the

practice and expectations of the legal community.” Id. (citation omitted).

       If an applicant satisfies the first prong, the next step is proving prejudice. In

this context, an applicant proves prejudice by showing he or she would not have
                                          8

pleaded guilty and instead would have insisted on going to trial. Id. Importantly,

“[t]his does not mean the defendant must show he or she would have prevailed at

trial.” Id. at 729. “Rather, the defendant must only show the ‘decision to reject the

plea bargain would have been rational under the circumstances.’” Id. (quoting

Padilla, 559 U.S. at 372).

       A. Breach of duty. We note the PCR court did not cite Padilla or Morales

Diaz, but did conclude plea counsel “put [Geimah] on notice of the possible

consequences, including deportation.” On our de novo review of the record, we

cannot come to the same conclusion.           Moreover, the State concedes that

Geimah’s defense attorney failed to comply with the standards expected of

attorneys:

       [C]ounsel 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, 473 Mass. 42, 38 N.E.3d 278, 290 (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, 136 N.M. 533, 101 P.3d 799, 805
       (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
                                        9

      like” to measure counsel’s performance. Padilla, 559 U.S. at 366
      (quoting Strickland, 466 U.S. at 688). Consulting the 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).                  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.

Morales Diaz, 896 N.W.2d at 730–31 (emphasis added).            “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.” Id. at 732.
                                          10


       Here, defense counsel repeatedly stated she informed Geimah deportation

was possible and advised him to speak with an immigration attorney. This does

not comport to the standard expected and, thus, plea counsel breached a duty

when she did not adequately inform Geimah regarding the immigration

consequences of his guilty plea.

       B. Prejudice.    Yet, Geimah must also show counsel’s breach of duty

resulted in prejudice. Geimah 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.” Id. at 732–33.

       On appeal, Geimah maintains that had he “been aware of the immigration

consequences of a conviction (deportation, cancellation of removal, inability to

legally reenter the United States following deportation, inability to naturalize etc.),”

rejecting the plea and going to trial “would have been entirely reasonable under

the circumstances.” We must consider the circumstances Geimah was in at the

time he was deciding whether to take the plea. See Lee v. United States, 582 U.S.

___,137 S. Ct. 1958, 1967 (2017) (“Courts should not upset a plea solely because

of post hoc assertions from a defendant about how he would have pleaded but for

his attorney’s deficiencies.    Judges should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.”).                    We

acknowledge “[t]he decision whether to plead guilty also involves assessing the

respective consequences of a conviction after trial and by plea. When those

consequences are, from the defendant’s perspective, similarly dire, even the

smallest chance of success at trial may look attractive.” Id. at 1966 (citation

omitted).
                                         11


       On July 17, 2015, Geimah pleaded guilty in Black Hawk County to violating

a no-contact order. Therefore, at the time Geimah was considering whether to

plead guilty in Poweshiek County, he was already deportable.3

       In early 2017, Geimah also had two pending charges of theft, which are

considered “crimes of moral turpitude.” Being convicted of one crime involving

moral turpitude committed within five years after the date of admission and “for

which a sentence of one year or longer may be imposed” renders a noncitizen

deportable. 8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added). Being convicted of two

or more crimes involving moral turpitude “at any time after admission” renders a

noncitizen deportable. Id. § 1227(a)(2)(A)(ii).

       In Poweshiek County, Geimah was charged with theft in the third degree,

for which a term of two years may be imposed. See Iowa Code §§ 714.2(3),

903.1(2) (2016). Geimah pleaded guilty to theft in the fourth degree—an offense

for which a sentence of one year may be imposed. See id. §§ 714.2(4), 903.1(1).

Thus, either theft in the third or fourth degree would have rendered Geimah

deportable—but Geimah was already deportable due to the earlier conviction for

violation of the protective order.




3 See 8 U.S.C. § 1227(a)(2)(E)(ii) (“Any alien who at any time after admission is
enjoined under a protection order issued by a court and whom the court determines
has engaged in conduct that violates the portion of a protection order that involves
protection against credible threats of violence, repeated harassment, or bodily
injury to the person or persons for whom the protection order was issued is
deportable. For purposes of this clause, the term ‘protection order’ means any
injunction issued for the purpose of preventing violent or threatening acts of
domestic violence, including temporary or final orders issued by civil or criminal
courts (other than support or child custody orders or provisions) whether obtained
by filing an independent action or as a pendente lite order in another proceeding.”).
                                         12


       Still, Geimah’s plea allowed him to avoid being convicted of an “aggravated

felony” and avoid a term of imprisonment.4         “[A] noncitizen convicted of [an

aggravated felony] is subject to mandatory deportation.” Lee, 137 S. Ct. at 1963

(emphasis added).      An alien convicted of an aggravated felony also faces

expedited removal proceedings. 8 U.S.C. § 1228(a)(3)(A). Geimah’s guilty plea

allowed him to avoid mandatory and expedited removal proceedings.

       Deportation or removal is not the sole immigration consequence of import,

however. An alien may qualify for cancellation of removal. For a lawful permanent

resident to be eligible for cancellation of removal, he must (1) lawfully be admitted

as a permanent resident for at least five years (which Geimah was), (2) have

resided continuously in the U.S. for at least seven years after legally being

admitted into the U.S., and (3) not be convicted of an aggravated felony. 8 U.S.C.

§ 1229b(a)(1)–(3). The immigration court noted the Poweshiek County conviction

did not result in a term of imprisonment, and thus rejected finding Geimah had

been convicted of an aggravated felony.

       Nonetheless, the immigration court determined Geimah was not eligible for

cancellation of removal:

       [R]espondent [Geimah] is not eligible statutorily for cancellation of
       removal for permanent residents under INA section 240A(a) [8
       U.S.C. § 1229b]. That is due to the court’s ruling that the
       respondent’s theft convictions constitute crimes involving moral
       turpitude, and they were both committed within seven years of the
       respondent’s only admission into the United States in 2010.
       Essentially, respondent was admitted on June 1, 2010[,] and he was
       convicted in January and February of 2017 for theft offenses

4 “A theft offense . . . for which the term of imprisonment [is] at least one year” is
an aggravated felony.” 8 U.S.C. § 1101(a)(43)(G). Theft in the third degree,
punishable by a term of imprisonment of two years, qualifies as an aggravated
felony. See Iowa Code §§ 714.2(3), 903.1(2).
                                           13


       committed prior to that date. As such, they were within seven years
       of his admission. As such, the respondent’s continuous residence
       clock was cut off after the commission of the second offense [of
       moral turpitude].

(Emphasis added.)      See 8 U.S.C. 1229b(d)(1) (“For purposes of this section

[related to cancellation of removal], any period of continuous residence or

continuous physical presence in the United States shall be deemed to end . . .

(B) when the alien has committed an offense referred to in section 1182(a)(2) of

this title that renders the alien inadmissible to the United States under section

1182(a)(2) of this title or removable from the United States under section

1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.”); cf. Barton v. Barr, ___

S. Ct. ___, 2020 WL 1941965, at *5 (2020) (interpreting this ‘stop-time rule’ and

concluding “cancellation of removal is precluded if a noncitizen committed a

§ 1182(a)(2) offense (as in Barton’s case) the conviction occurred after the seven

years elapsed”). The “stop-time rule” was triggered upon Geimah’s commission

of two crimes of moral turpitude within the seven-year period after admission.

       The State notes that by pleading guilty in Poweshiek County Geimah

avoided going to prison. Geimah did testify he “was happy” because he would not

go to jail and would be placed on unsupervised probation. On our de novo review,

and considering all the circumstances, we conclude a decision to reject the plea

bargain at the time would not have been rational. Consequently, Geimah has

failed to establish the requisite prejudice, and his ineffective-assistance-of-counsel

claim fails.

       AFFIRMED.
