*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** Electronically Filed Supreme Court SCWC-XX-XXXXXXX 26-JAN-2021 08:22 AM Dkt. 20 OP IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ---o0o--- EDELMIRA SALAYES ARAIZA, Petitioner/Petitioner-Appellant, vs. STATE OF HAWAIʻI, Respondent/Respondent-Appellee. SCWC-XX-XXXXXXX CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 14-1-0162; S.P.P. NO. 15-1-0007) JANUARY 26, 2021 RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE BROWNING, ASSIGNED BY REASON OF VACANCY OPINION OF THE COURT BY RECKTENWALD, C.J. I. INTRODUCTION Edelmira Salayes Araiza is a citizen of Mexico and a lawful permanent resident (LPR) of the United States. She has lived in Hawaiʻi for more than twenty-two years and has two children, both of whom were born in the United States. In 2014, *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** Araiza pleaded no contest in the Circuit Court of the Second Circuit to Theft in the First Degree, an aggravated felony under federal immigration law, 8 U.S.C. § 1101(a)(43), and to Welfare Fraud. Her attorney advised her that pleading no contest would make deportation “almost certain,” but that “[his office] had criminal defendants who were convicted of felonies who are not automatically deported” because immigration was “handled by federal authorities who do not oversee state courts.” Here, we are asked to determine whether counsel properly advised his client, Araiza, about the consequences of an aggravated felony conviction. We hold he did not. In order to be effective under the United States and Hawaiʻi Constitutions, criminal defense attorneys must advise their clients about adverse immigration consequences that may result from a plea of guilty or no contest. Haw. Const. art. I, § 14; Padilla v. Kentucky, 559 U.S. 356, 368 (2010). Despite her attorney’s reference to deportation being “almost certain,” when taken as a whole, his advice conveyed that there was a realistic possibility Araiza would not be deported. In reality, Araiza was precluded from discretionary relief from deportation because of her conviction. Budziszewski v. Comm’r of Corr., 142 A.3d 243, 251 (Conn. 2016) (“If counsel gave the advice required under Padilla, but also expressed doubt about the likelihood of enforcement, the court must also look to the totality of the 2 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** immigration advice given by counsel to determine whether counsel’s enforcement advice effectively negated the import of counsel’s advice required under Padilla about the meaning of federal law.” (emphasis added)). Araiza is therefore entitled to relief. In light of our resolution of this issue, we decline to determine whether the Intermediate Court of Appeals (ICA) erred on the other points of error raised by Araiza. 1 However, we offer guidance on one of those issues relating to qualifications of interpreters. When a lower court appoints an interpreter who has not been certified by the judiciary as proficient in the applicable foreign language, it must conduct a brief inquiry to establish that the interpreter is qualified, as required by Hawaiʻi Rules of ...
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