Emad Gh Al Rousan, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0040

Emad Gh Al Rousan, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 3, 2020
Affirmed
Worke, Judge
Dissenting, Jesson, Judge

Ramsey County District Court
File No. 62-CR-17-7191

Christian R. Peterson, Christian R. Peterson Law Office, Maple Grove,
Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Lyndsey M. Olson, City Attorney, Steven Heng, Assistant City Attorney, St. Paul,
Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the district court’s denial of his petition for postconviction
relief and his motion to withdraw his guilty plea, arguing that he received ineffective
2
assistance of counsel concerning the immigration consequences of pleading guilty. We
affirm.
FACTS
On November 9, 2017, appellant Emad Gh Al Rousan pleaded guilty to
misdemeanor violation of an order for protection (OFP ) that prohibited him from calling
his wife. See Minn. Stat. § 518B.01, subd. 14(b) (2016). At the plea hearing, the district
court asked whether Rousan had enough time to discuss the case with his attorney. Rousan
responded that he had. When questioned by his attorney, Rousan confirmed that he had
gone through the plea petition “line-by-line” with her. The plea petition contained a clause
that read, “I understand that if I am not a citizen of the United States, my plea of guilty to
this crime may result in deportation, exclusion from admission to the United States or
denial of naturalization as a United States citizen.” The plea petition also stated that
Rousan had fully discussed his constitutional rights with his attorney. Rousan’s attorney
signed the plea petition indicating that she “personally explained the contents of the . . .
petition to [Rousan]” and Rousan confirmed that he signed the petition with the intent to
plead guilty.
Neither Rousan’s attorney, the prosecutor, n or the district court inquired about
whether Rousan had been advised about the immigration consequences of pleading guilty.
After Rousan provided a factual basis to support his plea stating that he had called his wife
in violation of the OFP , the district court found that Rousan had made a knowing,
intelligent, and accurate waiver of his rights, and that the factual basis supported the plea.
The district court deferred acceptance of the plea until sentencing. On January 11, 2018,
3
the district court accepted Rousan’s guilty plea and sentenced him to 90 days in jail, stayed
for one year, and placed him on probation for one year.
On January 22, 2019, Rousan was discharged from probation. On September 11,
2019, Rousan filed a petition for postconviction relief, or in the alternative, a motion to
withdraw his guilty plea. Rousan claimed that he was entitled to postconviction relief
because his counsel failed to advise him of immigration consequences.
Rousan filed a supporting affidavit stating that he was born in Jordan in 1968, he
came to the United States in 2010 as a permanent lawful resident, he was not a U.S. citizen,
his attorney never asked him about his immigration status nor “explained that there would
be immigration consequences,” and he would not have pleaded guilty had he known about
the immigration consequences. Rousan stated that as a result of pleading guilty, an
immigration judge had ordered his deportation on July 26, 2019.
On December 12, 2019, the district court summarily denied Rousan’s requested
relief. The district court determined that because the plea petition and transcript from the
plea hearing established that Rousan’s attorney had advised him that pleading guilty may
result in deportation, his counsel was effective because he was not convicted of an offense
that would result in automatic deportation. This appeal followed.
D E C I S I O N
Rousan challenges the district c ourt’s summary denial of his petition for
postconviction relief , arguing that he was entitled to relief because his counsel did not
advise him regarding the immigration consequences of his plea.
4
In reviewing a district court’s denial of a petition for postconviction relief, this court
reviews the district court’s factual findings for clear error, its legal conclusions de novo,
and its decision whether to grant relief for an abuse of discretion. Sanchez v. State, 890
N.W.2d 716, 719-20 (Minn. 2017). To pre vail on a claim of ineffective assistance of
counsel, a defendant must demonstrate that “counsel’s representation fell below an
objective standard of reasonableness,” and that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068
(1984).
“The objective standard of reasonableness is defined as representation by an
attorney exercising the customary skills and diligence that a reasonably competent attorney
would perform under similar circumstances.” State v. Vang, 847 N.W.2d 248, 266-67
(Minn. 2014) (quotations omitted). There is a strong presumption that counsel’s
performance was reasonable. Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016). When
one prong of the Strickland test is determinative, an appellate court does not need to address
the other prong. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth
Amendment requires counsel to inform a noncitizen defendant about the immigration
consequences of a guilty plea, including deportation. 559 U.S. 356, 374, 130 S. Ct. 1473,
1486 (2010). The Minnesota Supreme Court has summ arized an attorney’s obligation as
follows:
5
Padilla establishes that criminal-defense attorneys must
take some affirmative steps before allowing a noncitizen client
to accept a plea deal. First, at a minimum, an attorney must
review the relevant immigration statutes to determine whether
a conviction will subject the defendant to a risk of removal
from the United States. Second, if conviction of the charged
offense clearly subjects the defendant to removal from the
United States, the attorney has a constitutional obligation to
advise the defendant of this fact before he or she enters a guilty
plea. If it does not, then a general advisory warning about the
possible immigration consequences of a guilty plea is
sufficient.

Sanchez, 890 N.W.2d at 721.
In denying Rousan’s postconviction petition, the district court relied on its
determination that Rousan’s conviction for violation of an OFP would not result in certain
deportation. Rousan contends that the removal consequences as a result of pleading guilty
to Minn. Stat. § 518B.01, subd. 14(b), were clear and thus his counsel’s general advice
about potential immigration consequences was not reasonable.
The Immigration and Nationality Act (INA) provides that a perman ent resident is
removable if “the court determines [they have] 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.” 8 U.S.C. § 1227(a)(2)(E)(ii) (2012). While the issue of whether the immigration
consequences of pleading guilty to violation of an OFP pursuant to Minn. Stat. § 518B.01,
subd. 14(b), are truly clear has not been squarely addressed in Minnesota, other
jurisdictions have addressed this issue.
6
In State v. Ramos-Curiel, the Washington Court of Appeals considered whether a
defendant received ineffective assistance of counsel when his attorney failed to advise him
that his guilty plea to a violation of a domestic-violence no- contact order would result in
certain deportation under the INA. No. 49048-0-II, 2017 WL 4005142, *2 (Wash. Ct. App.
Sept. 12, 2017), review denied (Wash. Aug. 8, 2018).
The Washington Court of Appeals, after examining the analyses undertaken by
federal courts 1, determined that a conviction f or a violation of a domestic-violence no-
contact order under Washington law would not necessarily subject the defendant to
deportation.2 Id. at *4. The court stated,
[T]he immigration consequences of pleading guilty to violation
of a domestic violence no contact order are complex and
not easily determined by simply reading the text of
8 U.S.C. section 1227(a)(2)(E)(ii). Rather, determining the
immigration consequences . . . required defense counsel to look
beyond the text . . . , ascertain the proper mode of analysis in
light of conflicting federal circuit court opinions, and apply the
proper analysis to the circumstances of [the defendant]’s case.
Even after making such a determination, counsel could not be
certain that [the defendant] would be deported . . . , since an
immigration court would be required to make certain factual
determinations about the nature of the no contact order

1 See Alanis-Alvarado v. Holder, 558 F.3d 833, 836 (9th Cir. 2009) (applying modified
categorical approach in determining whether petitioner’s conduct constituted deportable
offense pursuant to 8 U.S.C. § 1227(a)(2)(E)(ii)); see also Garcia- Hernandez v. Boente,
847 F.3d 869, 872 (7th Cir. 2017) (declining to apply either the categorical approach or the
modified categorical approach as language of 8 U.S.C. § 1227(a)(2)(E)(ii) calls for focus
on state court’s determination regarding defendant’s violation of the protective order).
2 While the protective order in Ramos-Curiel was a domestic-violence no-contact order and
the protective order in this case was an OFP, this distinction is irrelevant because the
language of 8 U.S.C. § 1227(a)(2)(E)(ii) applies to protective orders generally.
7
violation under either the modified categorical approach of the
Ninth Circuit or the analysis employed by the Seventh Circuit.

Id. at *5.

Our review of federal caselaw leads us to the conclusion that the immigration
consequences of Rousan’s guilty plea were not truly clear. Notably, the language of 8
U.S.C.A. § 1227(a)(2)(E)(ii) requires an immigration court to make certain determinations
about the nature of the protective order and the alien’s conduct. See Garcia-Hernandez v.
Boente, 847 F.3d at 872 (“The key language, ‘the court determines,’ does not require a
conviction of a particular kind . . . . [w]hat matters is what the court ‘determines.’”). This
required determination does not make it so that an alien convicted of an OFP violation is
clearly subjected to deportation. Therefore, despite the lack of plea-hearing inquiry
regarding immigration consequences, the general immigration advisory in the plea
petition—which Rousan reviewed with his attorney —was sufficient to comply with the
requirements of Padilla. Because Rousan received effective assistance of counsel
regarding potential immigration consequences, the district court did not err by denying his
petition for postconviction relief . As the performance prong is dispositive, we do not
address whether Rousan demonstrated prejudice.
We recognize that deportation due to Rousan’s guilty plea to a misdemeanor offense
may seem harsh, and Rousan’s request for postconviction relief shows that remaining in
the United States is important to him. See Padilla, 559 U.S. at 368, 130 S. Ct. at 1483
(recognizing that “preserving the client’s right to remain in the United States may be more
important to the client than any potential jail sentence” (quotations omitted)). In our view,
8
while counsel’s performance was reasonable, this case highlights the importance of
ensuring that a noncitizen defendant is truly making an informed decision about pleading
guilty. See id. at 373- 74, 130 S. Ct. at 1486 (noting “severity of deportation . . . only
underscores how critical it is for counsel to inform her noncitizen client that he faces a risk
of deportation”).
Affirmed.

D-1

JESSON, Judge (dissenting)

I respectfully dissent.

An immigration judge ordered appellant Emad Gh Al Rousan, a lawful permanent
resident of the United States, deported as a result of his guilty plea to violation of an order
for protection (OFP) —a misdemeanor. 1 The Sixth Amendment to the United States
Constitution entitles criminal defendants like Rousan to effective assistance of counsel.
The question bef ore us is whether Rousan received constitutionally adequate advice
regarding the immigration consequences of his guilty plea before deciding to enter it. The
answer to this question hinges on whether conviction of an OFP violation “clearly
subject[ed]” Rousan to deportation. Sanchez v. State, 890 N.W.2d 716, 721 (Minn. 2017).
If so, his counsel should have advised him of this fact. Id. Otherwise, a general advisory—
like the one provided here—about potential immigration consequences suffices. Id. After
reviewing the text of the immigration statute at issue and comparing it with two previously
analyzed statutes, I conclude that the immigration consequences of Rousan’s guilty plea
were truly clear. The Constitution entitled Rousan to better legal advice.
I begin by considering the relevant immigration statute. The Immigration and
Nationality Act (the Act) includes categories of criminal offenses which render a

1 The record does not contain docu ments from Rousan’s immigration court proceedings.
But when considering whether to grant an evidentiary hearing on a postconviction petition,
the “postconviction court considers the facts alleged in the petition as true and construes
them in the light most favorable to the petitioner.” Brown v. State, 895 N.W.2d 612, 618
(Minn. 2017).

D-2

noncitizen2 subject to removal from the United States. See 8 U.S.C. § 1227(a)(2) (2012).
One such criminal offense is the violation of an OFP. 8 U.S.C. § 1227(a)(2)(E)(ii). The
Act states that a noncitizen “is deportable” if a court “determines [that he] 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.” Id. (emphasis added). Based solely on the
language of the statute, I conclude that pleading guilty to violating an OFP subjects Rousan
to removal from the United States.3
My conclusion is bolstered by comparing the statute at issue here (violation of an
OFP) with two previously analyzed statutes. In Padilla v. Kentucky, the United States
Supreme Court concluded that the immigration consequences for pleading guilty to
transporting a large amount of marijuana in a tractor trailer were truly clear. 559 U.S. 365,
359, 368-69, 130 S. Ct. 1473, 1477, 1483 (2010). Similar to the provision of the Act at
issue here, the portion of the INA dealing with controlled-substance crimes states that a
noncitizen who “has been convicted of a violation of . . . any law or regulation . . . relating
to a controlled substance . . . other than a single offense involving possession for one’s own
use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis

2 Although the statute uses the term “alien,” the Act defines “alien” as “any person not a
citizen or national of the United States.” 8 U.S.C. § 1101(a)(3) (2012).
3 In reaching a conclusion to the contrary, the majority opinion relies heavily on an
unpublished case from the Washington Court of Appeals and its analysis of federal law.
That case is not precedential in the state of Washington. See Wash. Rev. Code § 2.06.040
(2019) (explaining that unpublished opinions are not precedential). Nor does it dictate the
outcome here. Because I conclude that the text of the statute alone is clear enough to entitle
Rousan to more specific advice, I do not look to persuasive authority.

D-3

added). The Supreme Court concluded that the terms of this statute were “succinct, clear,
and explicit in defining the removal consequences f or Padilla’s conviction.” 4 Padilla,
559 U.S. at 368, 130 S. Ct. at 1483.
In contrast, the Minnesota Supreme Court, in Sanchez, determined that provisions
of the INA dealing with aggravated felonies were not truly clear. 890 N.W.2d at 723.
Sanchez pleaded guilty to third-degree criminal sexual conduct for “sexual penetration of
a person between 13 and 16 years of age.” Id. at 722. The Act explains that a noncitizen
“convicted of an aggravated felony . . . is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The
Minnesota Supreme Court concluded that, like in Padilla, this statute is truly clear that the
commission of certain crimes —aggravated felonies—subjects a noncitizen defendant to
removal from the United States. Sanchez, 890 N.W.2d at 722.
But unlike Padilla, the supreme court determined that the Act is “not clear about
which offenses qualify as aggravated felonies.” Id. (emphasis added). The supreme court
observed that the category of aggravated felonies includes a broad range of offenses—
including “murder, rape, or sexual abuse of a minor”—but does not define “sexual abuse
of a minor.” Id. (quotation omitted). And because the offense was undefined, an

4 Accordingly, the Supreme Court determined that by reading the text of the statute—which
“specifically command[ed] removal for all controlled substances convictions except for the
most trivial of marijuana possession offenses”—Padilla’s counsel could have easily
determined that the guilty plea would make Padilla “eligible for deportation.” Padilla, 559
U.S. at 368, 130 S. Ct. at 1483. Because the immigration statute made Padilla’s deportation
“presumptively mandatory” and his counsel provided incorrect advice, the Supreme Court
held that Padilla satisfied the first prong of the ineffective-assistance -of-counsel standard.
Id. at 369, 1483.

D-4

immigration court would likely have to review federal administrative guidance and other
federal statutes to determine whether an offense qualifies as an aggravated felony. Id. at
722-23. Accordingly, the Minnesota Supreme Court concluded “that the relevant
immigration statutes were not truly clear about whether Sanchez would be subject to
removal after pleading guilty.” Id. at 723.
Comparison of these two cases suggests that the statute at issue here is more similar
to Padilla than Sanchez. It clearly states the consequences (removal from the United
States) for a noncitizen committing a specific act (violating the portion of an OFP intended
to protect the holder from threats, harassment, and bodily harm). This statute, in contrast
with the one at issue in Sanchez, does not encompass a broad spectrum of criminal offenses
requiring additional analysis to determine if the charged offense falls within the
contemplated conduct. Rather, like the statute in Padilla, its terms are “succinct, clear, and
explicit in defining the removal consequences.” 559 U.S. at 368, 130 S. Ct. at 1483. I
would conclude that the immigration consequences of Rousan’s guilty plea to violating an
OFP were truly clear.
True clarity does not require absolute certainty. See Sanchez, 890 N.W.2d at 723
(concluding that it was unclear “whether Sanchez would be subject to removal” based on
his plea—not whether it was clear he would actually be removed from the United States).
And in other contexts, courts have declared that “[c]lear and convincing evidence is shown
where the truth of the facts asserted is highly probable.” 5 C hristie v. Estate of Christie,

5 Courts apply the clear-and-convincing-evidence standard in cases involving certain types
of civil commit ment, allegations of attorney misconduct, and the termination of parental

D-5

911 N.W.2d 833, 839 (Minn. 2018) (quotation omitted) (emphasis added). Yet absolute
certainty is what the district court here— and some courts elsewhere —appear to adopt as
the standard. I do not read precedent as requiring that removal from the United States be
an absolute certainty in order to conclude that the immigration consequences of a guilty
plea are clear. And here, the immigration statute is truly clear: violation of the portion of
an OFP intended to protect the holder from threats, harassment, or bodily injury renders a
noncitizen deportable. No more need be said. This clarity entitled Rousan to better legal
advice than a general advisory that there “may” be immigration consequences as a result
of his plea. Rousan never received that advice. I would reverse and remand.6

rights. See In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (civil commitment as a
psychopathic personality); In re Disciplinary Action Against Andrew, 465 N.W.2d 576,
577 (Minn. 1991) (attorney misconduct); In re Welfare of Children of K.S.F., 823 N.W.2d
656, 663 (Minn. App. 2012) (termination of parental rights).
6 I would conclude that Rousan satisfied the first prong of the Strickland test demonstrating
that his counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668,
688, 104 S. Ct. 2052, 2064 (1984). As a result, I would remand for the district court to
determine whether he met the second prong, requiring a showing of prejudice. See id. at
693-94, 2068.