No. SCWC-17-0000695, Wednesday, September 23, 2020, 8:45 a.m.

EDELMIRA SALAYES ARAIZA, Petitioner/Petitioner-Appellant, vs. STATE OF HAWAII, Respondent/Respondent-Appellee.

The above-captioned case has been set for argument on the merits at:

The oral argument was held remotely and live-streamed for public viewing via the Judiciary’s YouTube channel at: YouTube.com/hawaiicourts

Attorney for Petitioner:

Hayden Aluli

Attorneys for Respondent:

Renee Ishikawa Delizo and Mark R. Simonds, Deputy Prosecuting Attorneys

NOTE: Certificate of Recusal, by Associate Justice Richard W. Pollack, filed 06/29/20.

NOTE: Order assigning Circuit Court Judge R. Mark Browning, in place of Pollack, J., recused, filed 06/29/20.

NOTE: Order accepting Application for Writ of Certiorari, filed 07/29/20.

COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Browning, in place of Pollack, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This case involves the Circuit Court of the Second Circuit’s denial of a Hawai i Rules of Penal Procedure (HRPP) Rule 40 petition following Edelmira Salayes Araiza’s (Ariza’s) plea of no contest to Welfare Fraud and Theft in the First Degree, an aggravated felony under federal immigration law. Araiza is a citizen of Mexico who obtained lawful permanent resident status in the United States. Shortly after her plea of no contest, the United States Department of Homeland Security initiated removal proceedings and detained her without bond. She thereafter filed a petition to vacate her plea pursuant to HRPP Rule 40, asserting that her defense attorney failed to advise her of the immigration consequences of her plea. She further asserted that she would not have pled no contest to the charges had she known her plea would result in automatic deportation.

The circuit court held a hearing on Araiza’s Rule 40 petition, during which time Araiza was represented by an immigration attorney. A Spanish-speaking interpreter was appointed to translate for Araiza at the hearing. Following the hearing, the court denied Araiza’s Rule 40 petition, concluding that her defense attorney had adequately advised her of the consequences of her no-contest plea. Araiza appealed to the ICA, and the ICA affirmed the lower court’s decision.

On certiorari, Araiza asks this court to determine whether: (1) her defense attorney provided ineffective assistance of counsel by providing deficient immigration advice; (2) her defense attorney provided ineffective assistance of counsel by failing to negotiate a plea to remove or minimize harsh immigration consequences; (3) the circuit court’s plea colloquy was insufficient; (4) her Rule 40 counsel provided ineffective assistance at the Rule 40 hearing; and (5) the circuit court committed plain error by appointing an unqualified interpreter for the Rule 40 hearing.