Court: Immigrants’ lawyers owe clients full disclosure
Santa Fe deportation case triggered ruling
A New 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 filed to withdraw his plea because he claims he was not told by his attorney his conviction would legally bar him from ever re-entering the U.S. — even though the defendant eventually acknowledged he was told he’d 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 noncitizen 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 defense attorneys should now be fully aware of what they’re obligated to do.
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.”
In the case ruled on by the appeals court, Manuel GallegosDelgado, an undocumented immigrant, had pleaded guilty to drug possession and DUI in May 2013. He received a conditional discharge for the drug possession, meaning the charge would be dropped for state purposes if he completed 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 Homeland Security and deportation proceedings 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.
He eventually admitted his lawyer told him he would be deported, but said he wasn’t informed he would be forbidden from ever applying to return to the U.S.
District Judge Stan Whitaker of Albuquerque denied the motion to withdraw the guilty plea. The appeals court reversed Whitaker’s decision, finding GallegosDelgado’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.