Judge rules immigrants’ lawyers have to cover all eventualities

Any info that can affect status is valid

ANew Mexico Court of Appeals ruling from late last year says defendants must be informed “with specificity” how a guilty plea can affect their immigration status.

The ruling came after an undocumented immigrant wanted a motion filed to withdraw his plea because he claims he was not told by his attorney that his conviction would legally bar him from ever re-entering the U.S. — even though the defendant acknowledged he was told he would be deported.

The December ruling specifies that it’s on the defense attorney, as part of the duty to provide a constitutionally adequate defense, to dig into a defendant’s immigration status and make sure a non-citizen defendant is fully aware of how a possible plea deal can impact his or her status in the country.

Santa Fe District Court Judge Mary Marlowe Sommer said she recently met with prosecutors and defense lawyers to discuss the ruling. She said that defense attorneys should now be fully aware of what they’re obligated to do if a client who is not a U.S. citizen is considering a plea deal.

“It’s on the defense council to meet all the requirements on the case,” she said “That puts the burden on them to have done their job.”

Morgan Wood, chief of Santa Fe’s public defender office, said defense attorneys have to look into each client’s immigration situation and see how federal law applies, even though the defendant is pleading to a

state crime.

“It’s more than ‘This can affect you,’ or ‘Hey, you can be deported,’ ” she said. “You have to get into the minutiae and the federal statutes. We can’t put it on the defendant to get their own outside (immigration) attorney.”

Wood said her office can request to contact an immigration attorney to discuss a client’s case.

“Most of us partially know all the different permutations and how this plea can affect this person,” Wood said. “The more complex the case, the more you might need to meet with an immigration attorney.”

In the case ruled on by the appeals court, Manuel Gallegos-Delgado, an undocumented immigrant, had pleaded guilty to drug possession and driving under the influence of alcohol in May 2013. He received a conditional discharge for the drug possession count, meaning the charge would be dropped for state purposes if he completed his supervised probation.

But a conditional discharge is the same as a conviction under federal immigration law. A controlled substance conviction results in permanent removal from the U.S.

Gallegos-Delgado then violated his probation terms in November 2013. He was taken into custody by the Department of Homeland Security and deportation proceedings against him began.

He filed a motion in Albuquerque District Court to withdraw his guilty plea, saying that he was not advised that he could be deported and that he would not have entered a guilty plea if he had known that.

But at the motion hearing in state District Court, he told a slightly different story — he said that his lawyer did in fact tell him he would be deported for pleading guilty, but that he wasn’t informed that he would be forbidden from ever applying to return to the U.S., according to the appeals court ruling by Judge Linda Vanzi.

District Judge Stan Whitaker of Albuquerque denied the motion to withdraw the guilty plea, finding that Gallegos-Delgado had in fact been advised of the consequences of the guilty plea, even though his lawyer acknowledged she didn’t know he would never be allowed to apply for re-entry into the U.S., and because there was no evidence that the defendant ever wanted to go to trial or was even leaning toward a trial instead of a plea.

The appeals court reversed Whitaker’s decision, finding that Gallegos-Delgado’s lawyer didn’t provide adequate representation, because the defendant would not have taken the plea deal if he’d known the full scope of the immigration consequences he was facing.

“It is not sufficient to advise a client that he or she will be deported, but rather, the criminal defense attorney must inform the client with specificity what the immigration consequences might be,” Vanzi’s opinion states.

The ruling states defense lawyers must “conduct an individualized analysis of the apparent immigration consequences for a defendant.”

Vanzi’s opinion says Gallegos-Delgado said he came to the U.S. as a child in 1998, and has a wife and young child here.