Qays Abdi Ahmed, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0506

Qays Abdi Ahmed, petitioner,
Respondent,

vs.

State of Minnesota,
Appellant.

Filed December 5, 2022
Reversed
Jesson, Judge

Polk County District Court
File Nos. 60-CR-16-2332, 60-CR-17-1307

Mark D. Nyvold, Fridley, Minnesota (for respondent)

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

Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, First Assistant County
Attorney, Crookston, Minnesota (for appellant)

Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Respondent Qays Abdi Ahmed pleaded guilty, on the advice of his attorney, to
charges which he acknowledged would make his deportation presumptively mandatory.
But two years after the plea, an immigration court concluded that Ahmed would be subject
2
to mandatory deportation because he was ineligible to apply for cancellation of removal.
Ahmed was deported in January 2021.
Ahmed brought a petition for postconviction relief based on an
ineffective-assistance-of-counsel claim, and he sought to vacate his guilty plea and
reinstate the charges against him so he could go to trial. After the postconviction court
granted Ahmed’s petition for postconviction relief, appellant State of Minnesota appealed.
Because the relevant immigration statute was unclear at the time of Ahmed’s plea and no
additional research by defense counsel could have clarified the potential immigration
consequences, Ahmed did not meet his burden to show that he received ineffective
assistance of counsel. Accordingly, we reverse.
FACTS
In December 2016, Ahmed was charged with felony fourth -degree assault,
misdemeanor refusal to submit to testing, and misdemeanor driving while impaired.
1
Ahmed applied for and was appointed a public defender, waived the omnibus hearing, and
intended to plead guilty. The district court scheduled a pretrial hearing, but Ahmed did not
appear, and a warrant was issued for his arrest in May 2017.
Ahmed was arrested in August 2018 and charged with failure to appear.2 The state
offered Ahmed a universal plea deal to resolve all charges against him: both the original

1 These offenses violated the following three Minnesota statutes: Minnesota Statutes
section 609.2231, subdivision 1(c)(2) (2016), Minnesota Statutes section 169A.52,
subdivision 1(a) (2016), Minnesota Statutes section 169A.20, subdivision 1(1) (2016).
2 Failure to appear violates Minnesota Statutes section 609.49, subdivision 1(a) (2016).
The failure-to-appear charge is under file 60-CR-17-1307. The original three charges from
December 2016 are under file 60-CR-16-2332.
3
2016 charges and the new failure- to-appear charge. From the beginning of his
representation, Ahmed’s public defender knew that Ahmed was a noncitizen resident in the
United States. Ahmed’s public defender communicated with an immigration lawyer about
Ahmed’s case in April 2017 and again in October 2018. 3 The immigratio n lawyer
informed the attorney that if Ahmed received a stay of imposition 4 on the felony assault
and felony failure-to-appear charges, they would not be considered aggravated felonies for
immigration purposes. And that outcome would be
important, she advised, because a
conviction for an aggravated felony would make Ahmed ineligible to contest his
deportation. The immigration attorney also told defense counsel that the felony assault and
felony failure-to-appear charges were crimes of moral turpitude, and that convictions for
two or more crimes of moral turpitude would make Ahmed’s deportation presumptively
mandatory.5 But even if Ahmed’s deportation was presumptively mandatory, he could still
make arguments against detention and deportation.
The defense attorney relayed this advice to Ahmed, and Ahmed pleaded guilty to
felony assault, misdemeanor driving while impaired, and felony failure to appear. As part

3 Ahmed’s public defender testified at the postconviction hearing that as a public defender,
he was required to consult an immigration lawyer when he represented a non-U.S. citizen.
The postconviction court determined, and neither party contests, that since the
immigration attorney was part of Ahmed’s defense team, he can bring an
ineffective-assistance-of-counsel claim based on the advice she gave the defense attorney.
4 Under a stay of imposition, successful completion of probation results in felony
convictions being classified as misdemeanors. Minn. Sent’g Guidelines 1.B(19)(a) (2022).
5 The Immigration and Nationality Act provides that any noncitizen resident who “is
convicted of a crime involving moral turpitude . . . for which a sentence of one year or
longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i)(I), (II) (2018). And
multiple convictions for crimes involving moral turpitude also require that a noncitizen
resident be deported. Id. at (a)(2)(A)(ii).
4
of the plea process, Ahmed signed a plea petition that contained language a dvising him
that he could be subject to immigration consequences. At the plea hearing, Ahmed’s
attorney stated on the record that Ahmed could be subject to immigration consequences
and Ahmed testified that he understood that his plea may affect his immigration
consequences and did not get him “out of the woods with immigration.”
The district court followed the plea agreement and sentenced Ahmed to a 60-day
executed sentence and three years of probation.
A probation report was filed in October 2019, stating that Ahmed violated his
probation by failing to remain law abiding when he was charged with seven offenses in
North Dakota after a June 2019 incident. These offenses included driving under the
influence, fleeing a peace officer, and possession of controlled substances. Ahmed pleaded
guilty to all the North Dakota charges except for a reckless endangerment charge, which
was dismissed. After Ahmed failed to appear at his probation violation hearing, another
warrant was issued for his arrest. After Ahmed was arrested, he asked the district court to
reinstate his probation, which ultimately occurred.
6
After Ahmed was reinstated on probation, the United States Department of
Homeland Security (DHS) initiated removal proceedings against Ahmed. DHS alleged
three grounds for removal proceedings against Ahmed: (1) he had been convicted of two
or more crimes of moral turpitude, (2) he had been convicted of an aggravated felony, and
(3) he was convicted of a crime relating to a controlled substance. Ahmed admitted the

6 Ahmed was also sentenced to an additional 90 days in jail.
5
factual basis for these claims, but contested his removability, arguing he had not been
convicted of an aggravated felony. The immigration court did not allow Ahmed to contest
removability because it concluded that he had been convicted of an aggravated felony.
Ahmed was deported in January 2021.
Three months later, Ahmed petitioned for postconviction relief, arguing that his
defense counsel was ineffective because they improperly advised him on the immigration
consequences of pleading guilty to the felony assault and failure-to-appear charges. The
postconviction court held an evidentiary hearing and granted postconviction relief. The
postconviction court found that there was a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.
The state appeals.
DECISION
The postconviction court found that Ahmed received ineffective assistance of
counsel when his attorney advised him that he would be subject to presumptive mandatory
deportation based on his plea—as opposed to being unable to contest deportation
altogether. The crux of this advice stemmed from the immigration attorney’s assessment
that Ahmed would not be pleading to an aggravated felony when he pleaded guilty to
failure to appear in court. We review a postconviction court’s findings of fact for clear
error and issues of law de novo. McKenzie v. State, 872 N.W.2d 865, 870 (Minn. 2015).
Because the facts are not in dispute, and whether Ahmed received effective assistance of
counsel requires us to examine the postconviction court’s legal conclusions, we review the
postconviction court’s conclusion de novo. Id.
6
With this standard of review in mind, we turn to the requirements of an
ineffective-assistance-of-counsel claim. To withdraw a plea due to ineffective assistance
of counsel, the postconviction court must determine “(1) that plea counsel’s representation
‘fell below an objective standard of reasonableness,’ and (2) ‘that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Sanchez v. State, 890 N.W.2d 716, 720 (Minn. 2017) (quoting
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). Whether counsel’s conduct
meets the objective standard of reasonableness depends on the reasonableness of the advice
at the time it was given. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”).
When assessing reasonableness, we apply a strong presumption that an attorney’s
performance falls within the wide range of reasonable professional assistance.
State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). General assertions of error without
evidentiary support are inadequate to establish ineffective assistance of counsel. See
State v. Miller, 666 N.W.2d 703, 717-18 (Minn. 2003) (rejecting claim that trial counsel
was ineffective because of a conflict of interest where defendant provided no evidence to
show that conflict of interest existed).
Our analysis of the reasonableness of counsel’s advice begins with the seminal case
on this topic— Padilla v. Kentucky. 559 U.S. 356, 369 (2010). In Padilla, the United States
Supreme Court held that one component of providing constitutionally effective
7
representation is informing a noncitizen defendant about the immigration consequences of
pleading guilty, particularly, the risk of deportation. Id. When criminal-defense counsel
advises noncitizen clients that a plea may result in deportation when the immigration
consequences are “unclear,” or that deportation is presumptively mandatory when the
immigration consequences are “truly clear,” they have provided effective assistance of
counsel. Id. Thus, what an attorney must do to provide effective assistance depends on
whether the immigration consequences are clear from the statute.
When “the terms of the relevant immigration statute are succinct, clear, and explicit
in defining the removal consequence for [a defendant’s] conviction,” then a defense
attorney must give their client correct immigration advice. Id. at 368-69, 381. But not all
statutes are clear. A statute is ambiguous when its language is subject to more than one
reasonable interpretation. Christianson v. Henke, 831 N.W.2d 532, 537 (Minn. 2013).
Here, the statute in question reads as follows: “The term ‘aggravated felony’
means . . . an offense relating to a failure to appear before a court pursuant to a court order
to answer to or dispose of a charge of a felony for which a sentence of 2 years’
imprisonment or more may be imposed.” 8 U.S.C. § 1101, subd. (a)(43)(T) (2018)
(emphasis added). But which offense’s maximum sentence does the definition refer to?
The maximum sentence for failure to appear on a felony assault charge is one and a half
years, less than the two-year threshold. Minn. Stat. § 609.49, subd. 1(a). But the maximum
sentence for the underlying felony assault is three years. Minn. Stat. § 609.2231, subd. 1(c)
(2016).
8
At the postconviction evidentiary hearing, the immigration attorney testified that
when advising Ahmed in October 2018, she believed that the maximum sentence at issue
referred to the sentence for the failure-to-appear charge. Because she believed the
maximum sentence at issue was less than two years, the immigration attorney advised
Ahmed that he was not pleading guilty to an aggravated felony, and while he would be
subject to presumptively mandatory deportation on other grounds, he would be able to
contest it.
The issue before us is whether this advice was objectively reasonable when it was
given. To assess the objective reasonableness of this advice, we engage in statutory
interpretation. The “felony for which a sentence of 2 years’ imprisonment or more may be
imposed” could either refer to the felony failure-to-appear charge or the underlying felony
charge because of the sentence structure. 8 U.S.C. § 1101, subd. (a)(43)(T); see
Martin v. Dicklich, 823 N.W.2d 336, 342 (Minn. 2012). The placement of the phrase “for
which a sentence of 2 years’ imprisonment or more may be imposed” next to the word
“felony” suggests that the sentence corresponds to that felony, not the failure-to -appear
charge. 8 U.S.C. § 1101, subd. (a)(43)(T). Yet in a neighboring definition of an aggravated
felony, the statute explicitly refers to the sentence for the “underlying offense.”
8 U.S.C. § 1101, subd. (a)(43)(Q) (2018). If Congress intended the sentence to refer to the
underlying felony, it knew how to say so clearly. See Henke , 831 N.W.2d at 535-36
(explaining that multiple parts of a statute may be read together to ascertain whether a
statute is ambiguous). Reading the statute to refer to the sentence for the underlying
felony would be adding a word that is not there, and courts cannot add to a
9
statute “what the legislature purposely omits or inadvertently overlooks.”
Ullom v. Indep. Sch. Dist. No. 112, Chaska, 515 N.W.2d 615, 617 (Minn. App. 1994)
(quotation omitted). Because the statute can reasonably be interpreted in two ways, the
statute is ambiguous.
When the terms of the statute alone are unclear, viewpoints diverge on what
guidance Padilla gives regarding what an attorney must do to provide effective assistance
of counsel. Sanchez, 890 N.W.2d at 721. As the Minnesota Supreme Court explained,
“What Padilla fails to resolve, however, is what an attorney must do when the applicable
immigration statutes are less than truly clear, but administrative interpretations or case law
indicate that a conviction will render the defendant deportable.” Id. (citing Padilla,
559 U.S. at 381). The supreme court went on to state that a strict interpretation of Padilla
suggests that an attorney’s obligation to investigate potential immigration consequences
ends at the relevant immigration statutes, even if binding caselaw establishes that a
conviction will subject a noncitizen defendant to deportation. Id. (citing Padilla,
559 U.S. at 368-69). In contrast, an expansive interpretation would require a defense
attorney to research all relevant court decisions and administrative interpretations because
of the harsh consequences that flow from potential erroneous advice to a noncitizen
defendant. Id. at 721-22.
Minnesota courts have yet to decide which interpretation of Padilla is correct, but
we need not decide this issue here. Under either interpretation, the defense attorney’s
advice was objectively reasonable.
10
According to the strict interpretation of Padilla, Ahmed received effective
assistance of counsel. “When the 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.” Padilla, 559 U.S. at 369
(emphasis added). The immigration attorney reviewed the statute and, based on her advice,
the defense attorney advised Ahmed that he may be subject to immigration consequences.7
That is enough to provide effective assistance of counsel under the strict interpretation of
Padilla.
Nor does our assessment of the reasonableness of advice change under the
expansive Padilla interpretation. Padilla states that “[i]t is quintessentially the duty of
counsel to provide her client with available advice about an issue like deportation.” Id. at
371 (emphasis added). The Minnesota Supreme Court interpreted available advice and a
reference to ‘the law’ in Padilla to include “the full array of legal sources, including case
law and administrative interpretations, not just relevant statutes.” Sanchez, 890 N.W.2d at
724.
But available advice at the time was sparse. The parties here only point to two
sources, a 2018 decision from the U.S. Court of Appeals for the Second Circuit and a 2016
Board of Immigration Appeals (BIA) decision, which could have informed an immigration
attorney on this issue. Henriquez v. Sessions, 890 F.3d 70, 73 (2d Cir. 2018); In re

7 At the plea hearing, the defense attorney stated on the record that Ahmed was “aware that
there is a possibility that the immigration people may take some action against him.”
Additionally, the plea that Ahmed signed contained language advising him that he could
be subject to immigration consequences.
11
Garza-Olivares, 26 I. & N. Dec. 736, 739 (B.I.A. 2016). These decisions do not represent
binding precedent in Minnesota. Nor do they contradict the advice provided here.
Henriquez held that the maximum sentence referred to in the immigration statute referred
to the maximum penalty for the failure-to -appear charge, not the underlying charge.
890 F.3d at 73. This is the same conclusion that Ahmed’s immigration attorney reached in
2018. The BIA decision does not interpret the immigration statute, rather, it analyzes
whether a federal failure-to-appear conviction fits under the statutory definition of an
aggravated felony. Garza–Olivares, 26 I. & N. Dec. at 739. Accordingly, even if the
immigration attorney had conducted further research on the aggravated-felony issue
beyond reading the statute, she could not have found sources which clearly support a
different approach from the advice she gave at the time. Thus, the advice Ahmed received
met the effective assistance of counsel standard under the expansive interpretation of
Padilla. 559 U.S. at 371.
To persuade us otherwise, Ahmed argues that we must defer to the postconviction
court’s determination of witness credibility, and the postconviction court credited the
immigration attorney’s testimony that she gave incorrect legal advice. But the
postconviction court’s credibility determination only holds weight for findings of fact, not
conclusions of law. A nd whether the advice met an objective standard of reasonableness
is a legal conclusion that we review de novo. McKenzie, 872 N.W.2d at 870. This court
does not defer to the immigration attorney’s postconviction interpretation of the statute
when we engage in statutory interpretation. See generally Henke, 831 N.W.2d at 532.
12
Nor does the fact that the immigration court later determined that the sentence at
issue was for the underlying felony assault charge, not the failure to appear charge, change
our decision that Ahmed received effective assistance of counsel. The advice Ahmed
received was objectively reasonable at the time it was given. Therefore, the immigration
court’s decision, rendered after the advice was given, can have no bearing on this analysis.
Strickland, 466 U.S. at 689.8
In sum, because the immigration statute relevant here is ambiguous and additional
research at the time would not have revealed precedent to change the immigration
attorney’s advice, that advice was objectively reasonable. Ahmed received effective
assistance of counsel.
Reversed.

8 Because Ahmed received effective assistance of counsel when his defense attorney
advised him that he may face immigration consequences from his plea, we need not
consider the prejudice prong. Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020) (stating
that if one prong of Strickland is not satisfied, we may dispose of the claim without
considering the other prong).