Bangladeshi found removable brings case to US Supreme Court

Mohammad A. Bashar, a Bangladeshi who was found removable from the U.S. or the CNMI based on his conviction for marriage fraud, has brought his case to the U.S. Supreme Court as he insisted that he was innocent of the charges and that he was provided ineffective assistance of counsel.

Bashar, through counsel Janet H. King, has filed a petition for a writ of certiorari that requests the U.S. Supreme Court to review and reverse the judgment and order denying his petition for rehearing in this matter.

To appeal to the U.S. Supreme Court, a petitioner applies to the U.S. high court for such writ of certiorari.

The CNMI high court affirmed a trial court’s order denying Bashar’s motion for rehearing, holding the motion was untimely and failed to establish ineffective assistance of counsel.

In his declaration in support of his motion for petition for writ, Bashar said he first arrived on Saipan in March 1997 and that he married Jayna Lynn Taitano in March 2009 because he loves her and that he wanted to take care of her.

Bashar said Taitano’s former boyfriend is the person he believes who intimidated and coerced his wife in making a charge of marriage fraud.

In Bashar’s petition to the U.S. high court, King said while the CNMI has been part of the United States family since 1976 through mutual agreement, federal immigration law only became applicable to the CNMI recently, starting in 2009.

King said because the CNMI was not subject to federal immigration laws until just a few years ago, criminal defense attorneys in the CNMI have little or no familiarity with U.S. immigration laws.

As a result, King said, criminal defendants in the CNMI are likely to receive no advice or incorrect advice about the immigration consequences of their criminal convictions.

“This is such a case,” the lawyer said.

According to court documents, in March 2009, the CNMI government filed a criminal case charging Bashar and his wife, Taitano, with conspiracy to commit marriage fraud and marriage fraud.

Attorney Edward C. Arriola represented Bashar in the criminal case.

King said that on Feb. 10, 2011, based on Arriola’s advice, Bashar pleaded “no contest” to marriage fraud. The trial court accepted his plea.

Prior to entering the plea, King said, Bashar maintained that Arriola did not inform him that the plea would subject him to automatic deportation.

Instead, King said, Arriola represented to and assured Bashar that so long as he paid a $2,000 fine, he would not be deported as a result of his guilty plea.

Based on Arriola’s assurance, King said, Bashar believed that deportation would not be a consequence of his plea.

King said Bashar would not have been correctly advised that his conviction would result in automatic deportation.

In March 2011, Bashar was served with a notice to appear by U.S. Immigration authorities, charging him with removability based on the conviction for marriage fraud.

Bashar retained another lawyer, Stephen Woodruff.

King said it was not until one of the hearings, where a Bengali interpreter was provided, that Bashar learned that his conviction was one of the grounds for the removal proceedings.

On Jan. 12, 2012, the immigration judge found Bashar to be removable based on the conviction for marriage fraud.

King said Woodruff began appeal proceedings on behalf of Bashar, but never filed the appeal brief.

The Board of Immigration Appeals dismissed the appeal. King said Woodruff was subsequently disbarred by the CNMI Supreme Court.

On Jan. 10, 2013, Bashar filed a motion to set aside the plea and vacate the conviction to correct the manifest injustice resulting from the ineffective assistance of counsel.

In particular, Bashar maintained that Arriola had failed to advise him that his plea would subject him to mandatory deportation.

Bashar said that had Arriola properly advised him, he would not have entered a plea and would have insisted on a trial. The defendant maintained that he was factually innocent of marriage fraud.

Bashar said his witnesses were unable to testify because the trial court refused an evidentiary hearing.

Arriola and his employees claimed that he advised Bashar that he “would” eventually be deported by U.S. Immigration authorities as a result of his plea.

However, King said, the plea agreement entered on Feb. 10, 2011, states only that Arriola advised Bashar about the potential immigration consequences that “may or may not occur.”

The Superior Court denied the motion without conducting an evidentiary hearing. The court concluded that Bashar’s motion was untimely and he did not establish that his prior counsel was ineffective.

Bashar appealed the denial of the motion to vacate to the CNMI Supreme Court.

But the CNMI high court affirmed, holding that the trial court did not err in finding Bashar’s motion untimely or in refusing to hold an evidentiary hearing, and Bashar did not show ineffective assistance of counsel.

The CNMI high court also denied Bashar’s petition for rehearing.

King said the CNMI Supreme Court’s decision contravenes its decision in Padilla v. Kentucky case requiring defense counsel to advise criminal defendants of the clear immigration consequences of guilty pleas.

King said since this is the first decision of the CNMI Supreme Court applying Padilla, and given that immigration laws have only just become applicable to the CNMI, this case presents an issue of great public importance for the CNMI.

In Padilla, the U.S. Supreme Court held that a guilty plea should be set aside if counsel misinformed the defendant of the immigration consequences of the conviction.

Prior to Padilla, King said, the CNMI Supreme Court has “consistently held that an attorney is not obligated to inform a client of potential immigration consequences…”

King said the CNMI Supreme Court’s decision contravenes the decisions of the U.S. Supreme Court requiring an evidentiary hearing where a claim of ineffective assistance of counsel, if proven, would warrant relief and the records and files cannot conclusively resolve the issue.

King said the CNMI Supreme Court compounded the error here by holding that Bashar was not entitled to an evidentiary hearing on his motion to set aside the plea.

King said the CNMI Supreme Court erred and violated Bashar’s due process rights and right to effective assistance of counsel in holding that Bashar’s motion was untimely.