                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3059
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Tiburcio Ramirez-Jimenez

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Waterloo
                                  ____________

                          Submitted: September 24, 2018
                             Filed: November 2, 2018
                                    [Published]
                                  ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

       Tiburcio Ramirez-Jimenez, a citizen of Guatemala, pleaded guilty to unlawful
use of identification documents in violation of 18 U.S.C. § 1546(a) and was sentenced
by the district court1 to time served in prison. Ramirez-Jimenez appeals, arguing that

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
defense counsel provided ineffective assistance in failing to adequately warn him
about the immigration consequences of his guilty plea. We affirm.

       Ramirez-Jimenez was encountered by the Border Patrol after illegally entering
the United States in 2011. He was released on his own recognizance and joined his
parents in Waterloo, Iowa. In March 2016, Ramirez-Jimenez was taken into
Immigration and Customs Enforcement (ICE) custody following a driving conviction
in Tama County, Iowa. He bonded out of ICE custody the following month. One year
later, he was charged with driving with a suspended license and providing the
arresting officers with a false name. Advised that Ramirez-Jimenez claimed to be
employed by a company in Waterloo, ICE investigated and learned that he had used
a false social security card and a false permanent resident card in completing an I-9
immigration form. In May 2017, he was given a suspended sentence by Tama
County, placed in ICE custody, and charged with violating 18 U.S.C. § 1546(a).

      On June 20, 2017, Ramirez-Jimenez appeared for a change-of-plea hearing with
appointed counsel, an Assistant Federal Public Defender. In advising Ramirez-
Jimenez of the punishment he would face if he pleaded guilty, Magistrate Judge C.J.
Williams2 explained:

             THE COURT: Are you a United States citizen?

             DEFENDANT RAMIREZ-JIMENEZ: No.

            THE COURT: I mentioned to you that after you have served your
      prison sentence, you will be placed on a term of supervised release.
      Because you are not a United States citizen, you may be deported
      immediately after serving your prison sentence and a condition of your
      supervised release will be that you not reenter the United States while on


      2
        The Honorable Charles J. Williams was appointed to be a United States
District Judge for the Northern District of Iowa on September 10, 2018.

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      supervised release. If you violate that condition and reenter the United
      States, the Court can . . . send you back to prison for all of any time you
      otherwise would have been on supervised release. . . . Do you
      understand that?

             DEFENDANT RAMIREZ-JIMENEZ: Yes.

             THE COURT: This conviction can also affect your ability to ever
      legally reent[er] the United States or become a United States citizen. Do
      you understand that?

             DEFENDANT RAMIREZ-JIMENEZ: Yes.

            THE COURT: Prior to today, did [defense counsel] discuss with
      you the fact that you may be deported after serving your prison sentence
      and that this conviction can affect your ability to ever legally reenter the
      United States or become a United States citizen?

             DEFENDANT RAMIREZ-JIMENEZ: Yes.

The district court accepted Ramirez-Jimenez’s guilty plea, and the case proceeded to
sentencing after preparation of a Presentence Investigation Report that included as a
proposed special condition of supervised release, “If the defendant is removed or
deported from the United States, the defendant must not reenter unless the defendant
obtains permission from the Secretary of Homeland Security.” At the sentencing
hearing, defense counsel urged the court to sentence Ramirez-Jimenez to time served:

            Mr. Ramirez asks that he have a sentence to time served. He
      understands that he will then be going to Immigration custody. And
      because of the situation, he understands that he’s not likely to gain relief
      in Immigration court.

The court then imposed a time-served sentence of 128 days plus three years of
supervised release. The court waived the $100 special assessment, imposed no fine,


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and “remanded [Ramirez-Jimenez] to the custody of the United States Marshal for
immediate processing to the Bureau of Immigration and Customs Enforcement (ICE)
detainer.”

       In Padilla v. Kentucky, 559 U.S. 356, 374 (2010), the Supreme Court held that,
to preclude a Sixth Amendment claim of ineffective assistance of counsel, a criminal
defendant’s counsel “must inform her client whether his [guilty] plea carries a risk of
deportation.” The Court noted that Padilla pleaded guilty to a controlled substance
offense, and that the relevant immigration statute clearly defined “the removal
consequence” of that conviction. Id. at 368, citing 8 U.S.C. § 1227(a)(2)(B)(I) (an
alien with Padilla’s controlled drug conviction “is deportable”). Padilla’s counsel had
“provided him false assurance that his conviction would not result in his removal from
this country.” Id. Acknowledging the complexity of our immigration laws, the Court
nonetheless held that Padilla sufficiently alleged deficient performance and remanded
for a determination of whether he could prove Strickland prejudice:

      When the [immigration] law is not succinct and straightforward . . . 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. But when the deportation consequence is
      truly clear, as it was in this case, the duty to give correct advice is
      equally clear.

Id. at 369.

        In this case, Ramirez-Jimenez argues that his conviction must be reversed
because his guilty plea was tainted by trial counsel’s ineffective assistance. “Ramirez-
Jimenez was not advised that his conviction . . . would clearly and definitely render
him inadmissible to the United States, subject to mandatory deportation and ineligible
for relief from removal. Instead, he was incorrectly advised by trial counsel only that
he ‘may be deported’ . . . .”


                                          -4-
       In most cases, we will not decide an ineffective assistance claim on direct
appeal because such claims are “generally best litigated in collateral proceedings,”
where the district court can hear evidence to determine exactly what defense counsel
failed to do. United States v. Thompson, 690 F.3d 977, 992 (8th Cir. 2012) (citation
omitted), cert. denied, 568 U.S. 1240 (2013). Here, the record does not reveal the full
extent of defense counsel’s advice regarding the immigration consequences of a guilty
plea and therefore would not permit us to conclude that Ramirez-Jimenez established
either the deficient performance or the prejudice elements of an ineffective assistance
claim. However, the record is sufficient to determine that the ineffective assistance
claim asserted on appeal is without merit.

       Ramirez-Jimenez asserts that his conviction makes him inadmissible under 8
U.S.C. § 1182(a)(2)(A)(i)(I) because a violation of 18 U.S.C. § 1546 is a crime
involving moral turpitude. That is an assertion that is less than clear and definite, see
Bobadilla v. Holder, 679 F.3d 1052, 1054-57 (8th Cir. 2012), but it is probably
correct. And in any event, the Immigration and Nationality Act clearly provides that
an alien who is convicted of violating 18 U.S.C. § 1546 “is deportable.” 8 U.S.C.
§ 1227(a)(3)(B)(iii). Moreover, like the drug offense at issue in Padilla, an alien
convicted of violating 18 U.S.C. § 1546 is not eligible for cancellation of removal and
adjustment of status. See 8 U.S.C. § 1229b(b)(1)(C). However, the similarity
between this case and Padilla ends there. In Padilla, defense counsel falsely assured
Padilla his conviction would not result in removal. Here, defense counsel and
Magistrate Judge Williams advised Ramirez-Jimenez at the change-of-plea hearing
not only that his guilty plea “carries a risk of deportation,” as Padilla clearly required,
but also that deportation was likely, as Ramirez-Jimenez surely knew from the fact that
he was in ICE custody with removal proceedings either pending or imminent.

       Ramirez-Jimenez argues that trial counsel’s performance was defective because
Ramirez-Jimenez was not told that “he was subject to mandatory deportation and
ineligible for relief from removal.” But the argument misinterprets Padilla and is

                                           -5-
based on a false premise. In Padilla, the Supreme Court held that plea counsel’s
performance was deficient for failing to advise Padilla 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. In many removal
proceedings, the alien concedes he is removable (deportable) and seeks relief from
removal by providing evidence that he is eligible for asylum, withholding of removal,
or relief under the Convention Against Torture. 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. Given this reality, the advice Ramirez-Jimenez
received at the change-of-plea hearing from defense counsel and from the court
complied with the Supreme Court’s decision in Padilla. Combined with what
Ramirez-Jimenez already knew from his ICE custody and prior dealings with
immigration officials, we conclude that he has not proved and cannot prove that his
guilty plea was caused by ineffective assistance of trial counsel.

      The judgment of the district court is affirmed.
                     ______________________________




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