Moots: Then-AG didn’t initiate deportation proceedings

Former assistant public defender Jeffrey A. Moots has disclosed that the CNMI government did not initiate removal proceedings against convicted Federated States of Micronesia citizen Seremea Issy Nowell during Pamela Brown-Blackburn’s term as attorney general.

Brown-Blackburn, now counsel for Nowell, is asking the Superior Court to set aside Nowell’s 2002 conviction for attempted rape because his then-counsel Moots allegedly failed to advise him that his guilty plea will make him deportable from the CNMI.

In his amicus curiae filing, Moots said during the six years he practiced in both the Office of the Public Defender and the Office of the Attorney General, he was not aware of anyone being deported based on that person being convicted of a qualifying offense.

Moots said this is reinforced by the fact that Nowell’s now counsel, Brown-Blackburn, did not initiate removal proceedings against Nowell when she was the AG—the official responsible for overseeing the CNMI’s immigration enforcement activities.

Moots, who is now based in Guam, filed the amicus curiae after Superior Court Associate Judge Joseph N. Camacho invited him and the U.S. Department of Homeland Security-Immigration and Customs Enforcement to participate at the hearing of Nowell’s petition.

Amicus curiae (friend of the court) refers to a brief filed in court by any entity who is not a party to the case. Camacho said Nowell’s case has far reaching ramification beyond this individual case.

In his reply, Moots asked the court to deny Nowell’s petition.

While he also served as chief prosecutor for the CNMI and supervised the attorneys who litigated removal actions, Moots said the only individuals who faced removal proceedings did so for violating their work permit conditions.

“During that time, no attempt was made—to the best of counsel’s knowledge—to deport someone based solely on a prior conviction,” he said.

Therefore, Moots added, the only advice he then provided to Nowell was that a conviction might result in his deportation.

Moots said Nowell’s claim that he should have been advised of the potential consequences of his conviction under the immigration laws of the U.S. fails the requirement set in the U.S. Supreme Court’s ruling in the Padilla case.

In the Padilla case, the high court ruled that counsel must inform the criminal defendant of the consequences of his plea under the federal immigration statutes because these laws controlled whether Padilla would remain in the U.S.

However, Moots said, Nowell’s ability to remain in the CNMI, where he still claims he wishes to remain, was not controlled by federal immigration law in 2002.

Therefore, he said, to meet the requirements laid forth by the U.S. Supreme Court, Nowell needed to know the immigration consequences under CNMI law, not federal law.

Moots noted that in 2002 he had no way of knowing that seven years later, the CNMI would lose control over its immigration process and become subject to federal law. He said his failure to anticipate this huge shift in the political landscape seven years after his representation of Nowell can hardly be seen as ineffective representation.

Moots said Nowell further claims that that his representation was ineffective because a plea to a different charge was not obtained.

Moots said Nowell does not claim that at any time the OAG was willing to allow him to plead to a misdemeanor, which has a maximum possible sentence of six months.

Moots said the reality is that Nowell, if convicted of kidnapping, would have faced a mandatory sentence of life in prison.

Therefore, he said, obtaining a plea with a maximum possible sentence of five years significantly reduced Nowell’s sentencing exposure.

Moots said a review of the sentencing transcripts show that the assistant attorney general who was present argued to the court for the sentence of five years.

“This further demonstrates the fact that Mr. Nowell would never have been offered a plea to the misdemeanor he claims his defense counsel should have negotiated for him,” he said.

Moots said based on the reality of the situation at the time Nowell entered his plea, his defense counsel complied with all requirements necessary to provide him effective representation.

On Feb. 6, 2, 2002, Nowell pleaded guilty to attempted rape pursuant to a plea agreement with the government. He was subsequently sentenced to two years in prison and served the jail term.

Nowell is now facing deportation after Immigration Judge Clarence M. Wagner Jr. issued a decision on Jan. 13, 2015, ordering him to be deported to the Federated States of Micronesia.

Last May 21, the 54-year-old Nowell, through Brown-Blackburn, filed in court an emergency petition to vacate his conviction.

Brown-Blackburn said the petition “provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors.”

Nowell has resided in the CNMI since the early 1990s and has adopted a U.S. citizen son, who is now 9 years old.

To allow the 2002 guilty plea without being properly advised of any adverse immigration consequences constitutes a violation of the NMI Constitution, the 6th Amendment and the Commonwealth Rules of Criminal Procedure, Brown-Blackburn said.