New Mexico Case Law
STATE v. CARLOS, 2006-NMCA-141 STATE OF NEW MEXICO,
Plaintiff-Appellee, v. ROBERTO CARLOS,
Defendant-Appellant. No. 25,982. Court of Appeals of New
Mexico. Filing Date: October 3, 2006 Revised December 11,
2006
Appeal from the District Court of Do?„a Ana County Stephen
Bridgforth, District Judge.
Patricia A. Madrid, Attorney General, Santa Fe, NM, Steven
S Suttle, Assistant Attorney General, Albuquerque, NM, for
Appellee.
Lilley Law Offices, Lawrence W. Allred, Michael W. Lilley,
Las Cruces, NM, for Appellant.
SUTIN, Judge.
OPINION
SUTIN, Judge.
{1} Our Supreme Court has held that a criminal defense
attorney must advise his or her client “of the specific
immigration consequences of pleading guilty[.]” State v.
Paredez, 2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d
799. Defendant appeals the denial of his motion to withdraw
his guilty plea, arguing that his plea was involuntary due
to ineffective assistance of counsel under the standard
enunciated in Paredez. We agree and we reverse for the
district court to conduct further proceedings and to
determine whether Defendant was prejudiced.
BACKGROUND
{2} Defendant, a permanent resident alien, was charged with
battery against a household member, false imprisonment, and
criminal damage to property. See NMSA 1978, §
30-3-15 (2001) (battery against a household member); NMSA
1978, § 30-4-3 (1963) (false imprisonment); NMSA
1978, § 30-15-1 (1963) (criminal damage to
property). He pleaded guilty to the charges of false
imprisonment and battery against a household member. In
exchange, the State dismissed the charges of criminal damage
to property and the State agreed not to oppose a suspended
sentence. The plea agreement contained the following
sentence: “I understand that entry of this plea agreement
may have an effect upon my immigration or naturalization
status.” The record does not contain any recitation of the
facts underlying the crimes to which Defendant pleaded
guilty.
{3} After sentencing, the federal government initiated
immigration removal proceedings against Defendant.
Defendant then filed a motion to withdraw his guilty plea,
asserting that his defense attorney did not inform him of
the likelihood of removal if he pleaded guilty to the
charge of false imprisonment. The district court denied his
motion without an evidentiary proceeding. Defendant
appealed. While his appeal was pending, our Supreme Court
decided Paredez, which set forth the test for determining
whether advice to a defendant regarding immigration
consequences is sufficient assistance of counsel.
2004-NMSC-036, ¶ 19. Based on Paredez, we remanded
the case in a memorandum opinion for an evidentiary
hearing, instructing the district court to determine
whether the standard announced in Paredez was met.
{4} At the evidentiary hearing, Defendant testified that
his attorney never discussed the possible immigration
consequences of a conviction or guilty plea on the charges
against him. He also testified that he did not have time to
read the plea agreement before signing it because the judge
was going to call his case, so he did not read the sentence
in the agreement stating that he understood that the
agreement may have an effect on his immigration status.
Defendant further testified that he would not have pleaded
guilty to the charges had he known that he could have been
deported. In addition, he testified that although he was
born in Mexico, he was brought to the United States right
after his birth, and has lived in the United States all of
his life. Further, Defendant also testified to the effect
that prior to accepting the plea agreement he told his
attorney that he did not commit false imprisonment, but he
pleaded guilty because she told him he would just get
probation.
{5} The attorney testified that she never would have asked
a client to sign a plea and disposition agreement without
reading it and that she did not do so in the present case.
She testified that through paperwork and discussions with
Defendant she learned that he was a Mexican national living
in the United States legally, and she testified that she
discussed possible immigration consequences with Defendant.
More specifically, the testimony was as follows:
[State:] Now, specifically regarding advising clients of
immigration consequences, what — do you recall
specifically the case of Roberto Carlos and what you talked
to him about regarding immigration?
[Attorney:] I gave all of the people who had immigration
consequences the same discussion and the same information.
Basically the first question after establishing their
nationality and whether they were subject to immigration
proceedings of any kind, I would ask them, has immigration
been in contact with you? Have they sent you a letter? Have
they come to your employer? Have they gone to your house?
Have they asked to see you? And if they say no, which a
majority — a lot of them do, especially who are
legal permanent residents, I say well just because nobody
has been in touch with you doesn’t mean that they won’t be.
And I explain to them the range of different things that
could happen, ranging from a paper review to a case being
called in and explaining basically the process all the way
through a deportation proceeding.
. . . .
[State:] Now as far as it pertains specifically to Mr.
Carlos, do you recall specifically going over those things
that you would normally do?
[Attorney:] I can’t say when I did it, I can’t say what
month or what day, but I do know that because he fit into
that category of potential immigration issues that he would
have gotten my standard discussion and the explanation of
what the procedure is.
. . . .
[State:] [D]id you know specifically what immigration
consequences Mr. Carlos could be facing or was likely to be
facing?
[Attorney:] Well, I think in terms of that you can only
speak of likelihood, because nobody knows what immigration
is ultimately going to do. There’s a lot of factors that
add in, in terms of the proceedings per se. I think that
the best thing to do, and again this was the policy of the
[public defender’s] department at the time, to give people
the whole gamut of what could be expected and what is
likely to happen. Our position was that we would tell
everybody as if this was going to go to a full blown
immigration case and to advise them what can happen along
the way.
{6} On cross-examination, the attorney further testified as
follows:
[Defense:] [Y]ou tell everybody, . . . not people here
illegally, people in Robert’s situation where they are here
legally right now but they’re not American citizens, what
is it you tell every single one of them?
[Attorney:] I tell them that they could be subject to
deportation proceedings, that their paperwork or their
status is reviewed by immigration, that a decision is made
on how to proceed, that more likely than not it ends up in
some type of formal proceeding where immigration would look
at whether they would be allowed to stay in the United
States if there is a conviction of any point. I also go
into a brief explanation of what a deportation proceeding
involves, I tell people that they’re entitled to have an
attorney represent them, that that is not our job as public
defenders, and that we do not pretend to know immigration
law, and that their best advice would be also to consult or
to talk with other people regarding that. But there are
certain factors that immigration could look at, and that
certainly how this case bears out could have an effect on
what immigration would ultimately decide.
. . . .
[Defense:] [S]pecific to Robert Carlos, what did you do to
determine whether false imprisonment is a crime that
subjected him to deportation if he was convicted of it?
[Attorney:] Well, it wasn’t a question that I did an
individual analysis with anyone because at that time they
were deporting people on the basis of felony DUIs, which
has since been overturned. We treated everyone the same in
the information that we gave. We told them what the
consequences were, we told them what a deportation
proceeding was about, we told them what their rights were,
we told them in so many words about mitigating factors, we
told them what we would do and we always left the decision
after that to take a plea or go to trial up to the client.
{7} The district court denied Defendant’s motion to
withdraw his plea. The court found that Defendant’s
attorney “determined before the plea hearing that defendant
was a Mexican national and a lawful permanent resident in
the United States” and that the attorney “discussed in
detail the defendant’s immigration status with him including
the consequences of his plea as was her habit in all cases
involving aliens.”
{8} Defendant appeals, arguing that, in violation of the
standard enunciated in Paredez, his attorney failed to tell
him of the specific consequences he would face for pleading
guilty to false imprisonment or battery on a household
member. Therefore, he argues, he received ineffective
assistance of counsel, his plea was not knowing and
voluntary, and he was prejudiced by the ineffective
assistance of counsel. Defendant asserts on appeal that the
district court must be reversed, he must be allowed to
withdraw his plea agreement, the judgment and order should
be vacated, and he should be allowed to proceed to trial.
DISCUSSION
Standard of Review
{9} A motion to withdraw a guilty plea is addressed to the
sound discretion of the trial court, and we review the
trial court’s denial of such a motion only for abuse of
discretion. The district court abuses its discretion in
denying a motion to withdraw a guilty plea when the
undisputed facts establish that the plea was not knowingly
and voluntarily given.
Paredez, 2004-NMSC-036, ¶ 5 (internal quotation
marks and citations omitted). “[T]he abuse-of-discretion
standard does not preclude an appellate court from
correcting errors premised on the trial court’s
misapprehension of the law[.]” State v. Barnett,
1998-NMCA-105, ¶ 13, 125 N.M. 739, 965 P.2d 323.
[A] trial court abuses its discretion when it . . . commits
manifest error by accepting a plea that is not knowingly
and voluntarily given. Where, as here, a defendant is
represented by an attorney during the plea process and
enters a plea upon the advice of that attorney, the
voluntariness and intelligence of the defendant’s plea
generally depends on whether the attorney rendered
ineffective assistance in counseling the plea.
We afford de novo review of mixed questions of law and fact
concerning the ineffective assistance of counsel.
Id. ¶¶ 12-13 (citations and footnote
omitted).
The Constitutional Standards
{10} The Sixth Amendment guarantees the right to reasonably
effective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 686-88 (1984). “Effective assistance of
counsel is necessary during plea negotiations.” Patterson
v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21
P.3d 1032. The defendant bears the burden of establishing
ineffective assistance of counsel. See Strickland, 466 U.S.
at 687; Paredez, 2004-NMSC-036, ¶ 13; Patterson,
2001-NMSC-013, ¶ 17. Where a defendant enters a plea
upon advice of counsel, “the voluntariness of the plea
depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.” Hill
v. Lockhart, 474 U.S. 52, 57 (1985) (internal quotation
marks and citation omitted); Paredez, 2004-NMSC-036,
¶ 13. In addition to showing that “counsel’s
representation fell below an objective standard of
reasonableness[,]” a defendant must also show that
“counsel’s constitutionally ineffective performance
affected the outcome of the plea process[,]” such that,
were it not for counsel’s errors, there was a reasonable
probability that the defendant “would not have pleaded
guilty and would have insisted on going to trial.” Id.
¶¶ 14, 20 (internal quotation marks and
citations omitted). In short, under Strickland, there is a
two-prong test under which a defendant must show (1)
“counsel’s performance was deficient,” and (2) “the
deficient performance prejudiced the defense.” Paredez,
2004-NMSC-036, ¶ 13 (internal quotation marks and
citation omitted).
The Paredez Case
{11} In Paredez, the defendant, a permanent resident alien,
pleaded guilty to criminal sexual contact of a minor in the
third degree. Id. ¶¶ 1, 2. His attorney and
the court advised him that the plea could affect his
immigration status. Id. ¶ 2. The Supreme Court noted
the applicable federal immigration statutes, namely, 8
U.S.C. § 1227(a) and (a)(2)(A)(iii) (2000), §
1101(a)(43)(A) (2000), and § 1229b(a)(3) (2000),
which relate to (1) removal of aliens upon order of the
attorney general when the class of deportable aliens
includes those who are convicted of an “aggravated felony”
such as sexual abuse of minor, and (2) whether the attorney
general may cancel removal. Paredez, 2004-NMSC-036,
¶ 4. The Court construed these statutes as rendering
the defendant’s removal a virtual, if not automatic or
certain consequence of his plea. Id. ¶¶ 4,
19, 25. That the Court so construed these statutes is borne
out by the Court’s following statements. The Court said
that “the record reflects that [the d]efendant’s attorney .
. . may have failed to inform him that his guilty plea
would result in his virtually automatic deportation.” Id.
¶ 4. The Court also stated that criminal defense
attorneys “must advise th[e] client of the specific
immigration consequences of pleading guilty, including
whether deportation would be virtually certain.” Id.
¶ 19. And the Court held “that . . . [the
d]efendant’s attorney had an affirmative duty to . . .
advise him that he almost certainly would be deported if he
pleaded guilty.” Id. ¶ 25.
{12} Having made the determination as to the specific
immigration consequences the defendant was virtually
certain to face, the Court in Paredez analyzed whether “an
attorney’s advice to the client that he or she `could’ or
`might’ be deported would be misleading and thus deficient”
where “a defendant’s guilty plea almost certainly will
result in deportation[.]” Id. ¶ 15. It is difficult
not to conclude from the Court’s analysis that defense
counsel must study immigration law and make a determination
whether the guilty plea will almost certainly result in
deportation. Note the Court’s quote from an Oregon case:
“[S]tating that a person `may’ be subject to deportation
implies there is some chance, potentially a good chance,
that the person will not be deported. That is an incomplete
and therefore inaccurate statement if made to an alien
considering whether to plead guilty to an aggravated
felony.” Id. (citation omitted). Moreover, the Court
specifically stated that, in many cases, giving no advice
regarding immigration consequences would be no different
than giving “general advice that a guilty plea `could,’
`may,’ or `might’ have an effect on immigration status”-in
each case “the defendant did not receive information
sufficient to make an informed decision to plead guilty.”
Id. ¶ 17.
{13} Emphasizing that “deportation can often be the
harshest consequence of a non-citizen criminal defendant’s
guilty plea,” it is obvious that the Court in Paredez was
not going to place the burden of knowing immigration law
and the consequences of a plea of guilty on either the
defendant or the district court. See id. ¶¶ 8,
12, 18, 25 (specifically not requiring more specificity by
the district court than that required in Rule 5-303 NMRA,
and stating that the district court did not err in its
admonition to the defendant and, in fact, fulfilled its
duty in informing the defendant that the guilty plea “could”
affect his immigration status, although stating that it
would have been prudent for the court to have been more
specific, and also stating that the fact that the court did
not err did not mean that defense counsel was relieved from
the duty to advise the defendant that he would almost
certainly be deported).
{14} Paredez does not indicate the depth of knowledge of
immigration law and practice defense counsel must have in
order to provide the advice the Court requires. However, it
is difficult to read Paredez in any way other than stating
a general rule that requires criminal defense counsel,
after determining the immigration status of the defendant,
to read and interpret federal immigration law and
specifically advise the defendant whether a guilty plea will
result in almost certain deportation. It is difficult to
find in the Paredez analyses and holding much leeway for
counsel’s advice short of a definite prediction as to the
likelihood of deportation based on the crimes to which a
defendant intends to plead and the crimes listed in federal
law for which a defendant can be deported. We again note
that in Paredez the Court, itself, construed federal law
and, under no uncertain terms, expressly stated a rule,
holding that:
criminal defense attorneys are obligated to determine the
immigration status of their clients. If a client is a
non-citizen, the attorney must advise that client of the
specific immigration consequences of pleading guilty,
including whether deportation would be virtually certain.
Proper advice will allow the defendant to make a knowing
and voluntary decision to plead guilty.
Id. ¶ 19.[fn1] Under this rule, after itself
construing federal law, and after rejecting advice that the
defendant might or could be deported as ineffective, the
Court then definitively stated and held that the
defendant’s counsel in Paredez “had an affirmative duty to
determine his immigration status and provide him with
specific advice regarding the impact a guilty plea would
have on his immigration status.” Id. ¶ 1 (emphasis
added). We cannot ignore the careful analysis of the
Paredez Court in reaching its conclusion. See Toscano v.
Lovato, 2002-NMCA-022, ¶ 19, 131 N.M. 598, 40 P.3d
1042 (stating that the Court of Appeals “should abide by
our Supreme Court’s clear statement in a recent opinion
that appears to have carefully considered the issue
presented”), overruled on other grounds by Baker v. BP Am.
Prod. Co., 2005-NMSC-011, 137 N.M. 334, 110 P.3d 1071.
The Present Case
{15} Although in the present case the district court found
that Defendant’s attorney “discussed in detail
[D]efendant’s immigration status with him including the
consequences of his plea,” the evidence was uncontroverted
that the attorney did not conduct an individualized
analysis of the apparent immigration consequences for
Defendant based on the actual charges to which he pleaded
guilty. The only evidence in the record is that the
attorney generally advised clients of the range of
different things that could happen in the deportation
proceedings, advised Defendant in general about the
possible consequences of pleading guilty, and advised him
of the utility of retaining counsel specifically to deal
with the immigration issue. It is difficult to sustain this
level of advice under the Paredez rule. That is, it is
difficult to find in Paredez any indication that it would
be acceptable in the present case to merely tell Defendant
that deportation was a possible consequence. We read
Paredez to require at a minimum that the attorney advise
the defendant of the specific federal statutes which apply
to the specific charges contained in the proposed plea
agreement and of consequences, as shown in the statutes,
that will flow from a plea of guilty.
{16} Thus, in the present case, as we read Paredez,
Defendant’s attorney should have discussed with Defendant
the specific elements of the charges of battery against a
household member and false imprisonment. See §
30-3-15 (stating that battery against a household member, a
misdemeanor, “consists of the unlawful, intentional
touching or application of force to the person of a
household member, when done in a rude, insolent or angry
manner”); § 30-4-3 (stating that false imprisonment,
a felony, “consists of intentionally confining or
restraining another person without his consent and with
knowledge that he has no lawful authority to do so”).
Further, the attorney at a minimum should have advised
Defendant that, according to federal statutes, an “alien .
. . shall, upon order of the Attorney General, be removed
if . . . convicted of . . . [an] [a]ggravated felony” or “a
crime of domestic violence.” See 8 U.S.C. §
1227(a)(2)(A)(iii), (a)(2)(E)(i) (2006). Further, the
attorney should have explained the statutory definition of
each of those crimes. See 8 U.S.C. § 1101(a)(43)(F)
(2006) (defining an aggravated felony to include “a crime
of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment [is] at least one year” (footnote omitted));
§ 1227(a)(2)(E)(i) (defining a crime of domestic
violence as a crime of violence “against a person committed
by a current or former spouse of the person, by an
individual with whom the person shares a child in common,
by an individual who is cohabiting with or has cohabited
with the person as a spouse, by an individual similarly
situated to a spouse of the person under the domestic or
family violence laws of the jurisdiction where the offense
occurs”); 18 U.S.C. ¶ 16 (2006) (defining a crime of
violence as “(a) an offense that has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, or (b) any other offense
that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense”). In addition, the attorney should have
analyzed and discussed with Defendant the federal statute
relating to cancellation of removal, see 8 U.S.C. §
1229(b), as well as, perhaps, 8 U.S.C. §§
1228(a) (removal of criminal aliens) and 1228(c)
(presumption of deportability).
{17} The State subtly suggests that because Paredez’s
determinations were based on the Sixth Amendment of the
United States Constitution, and not on independent state
constitutional grounds, our Supreme Court in Paredez should
have followed, but mistakenly failed to follow, the
standard applied in Broomes v. Ashcroft, 358 F.3d 1251 (10th
Cir. 2004). In Broomes, the Tenth Circuit Court of Appeals
concluded that counsel’s failure to advise a defendant of
immigration consequences is not a violation of the Sixth
Amendment guarantee of effective assistance of counsel
because immigration consequences are collateral
consequences. Id. at 1257. Indeed, in deciding Paredez our
Supreme Court explicitly recognized that the Tenth Circuit
and other jurisdictions have not interpreted the Sixth
Amendment to require counsel to advise non-citizen clients
“of the specific immigration consequences of pleading
guilty.” 2004-NMSC-036, ¶¶ 15-19. We will not
venture into this issue, because this Court “follow[s]
applicable precedents of our Supreme Court.” State v.
Travarez, 99 N.M. 309, 311, 657 P.2d 636, 638 (Ct.App.
1983). Thus, we apply the Paredez standard in regard to
counsel’s advice as to specific immigration consequences,
and as we read that standard Defendant has met the first
prong of the test for ineffective assistance of counsel.
{18} In the present case, Defendant’s attorney did not give
Defendant that specific advice. Thus, the advice fell below
the standard required by Paredez for effective assistance
of counsel. Id. ¶¶ 15-19.[fn2]
{19} We turn now to the second prong of the Strickland
test: whether the ineffective assistance of counsel
prejudiced Defendant. Paredez, 2004-NMSC-036, ¶ 13.
A non-citizen must show that he would not have entered the
plea if he had been given constitutionally adequate advice
as to the specific consequences of his plea, see id.
¶¶ 16, 19-20, together with a reasonable
probability that he would have gone to trial instead of
pleading guilty, see Patterson, 2001-NMSC-013, ¶ 18.
{20} “[T]here are no mechanical rules for determining
prejudice.” Barnett, 1998-NMCA-105, ¶ 32. To
establish prejudice, a defendant generally must introduce
evidence beyond solely self-serving statements. Id.
¶ 29. Such evidence, for example, can include
pre-conviction statements or actions indicating whether the
defendant was disposed to plead or go to trial. Patterson,
2001-NMSC-013, ¶ 30. Such evidence may also include
“the strength of the evidence against a defendant.” Id.
¶ 31. As we indicated earlier in this opinion, the
record is bare with respect to the evidence against
Defendant. We therefore are unable to assess the strength
of the evidence against Defendant.
{21} Although the issue of prejudice requires objective
evidence, where that evidence is sparse, the question may
well turn on what the defendant would have been motivated
to do if given accurate information. See Lewandowski v.
Makel, 949 F.2d 884, 889 (6th Cir. 1991) (“[I]n cases such
as this where the question turns on the motivation of the
defendant — that is, what would the defendant have
done if supplied with accurate information — the
amount of objective evidence will quite understandably be
sparse.”). Defendant’s testimony that he has lived in the
United States virtually his whole life, having been brought
to his country right after he was born, may have been an
important factor in his decision whether to enter a plea.
See United States v. Couto, 311 F.3d 179, 191 (2d Cir.
2002) (“Defendant’s overriding concern is remaining in the
United States and hence that she very likely would not have
pleaded guilty if she had understood the deportation
consequences of [her] plea[.]”).
{22} The abuse of discretion standard of review often
involves mixed questions of law and fact. In the present
case, the district court ended its analysis by holding
against Defendant as to the first prong of the Strickland
two-prong test thereby avoiding the need to address the
prejudice prong. We prefer that the district court address
the prejudice issue and provide findings underlying or
reasons for the court’s ultimate determination. See
Barnett, 1998-NMCA-105, ¶ 33 (stating that the
record was “unclear as to whether [d]efendant would have . .
. proceeded to trial if he had been competently advised,”
and that “the proper course [was] to remand to the trial
court for an evidentiary hearing to determine if
[d]efendant was prejudiced by the deficient performances of
his attorneys in counseling his plea”); see also
Lewandowski, 949 F.2d at 889 (stating that deference was
“especially warranted” to the district court’s factual
finding as to whether the defendant would have chosen to
proceed in a particular way had he been adequately apprised
of the risks, “because the critical evidence was
testimonial”).
CONCLUSION
{23} Defendant established ineffective assistance of
counsel under Paredez. The district court therefore erred
in holding that Defendant failed to prove ineffective
assistance of counsel. We reverse and remand to the
district court to conduct further proceedings and to
determine under the second prong of the Strickland standard
whether Defendant was prejudiced.
{24}IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
I CONCUR:
______________________________________ RODERICK T. KENNEDY,
Judge
MICHAEL E. VIGIL, Judge (specially concurring).
[fn1] Two of the cases relied on for this standard by our
Supreme Court in deciding Paredez were reversed after
Paredez was decided. See id. ¶ 15 (citing Gonzalez
v. State, 83 P.3d 921, 925(Or.Ct.App. 2004), rev’d, 134
P.3d 955 (Or. 2006), and State v. Rojas-Martinez, 73 P.3d
967, 970 (Utah Ct.App. 2003), rev’d, 125 P.3d 930 (Utah
2005)).
[fn2] We cannot close the ineffective assistance of counsel
issue without noting that we share the same concerns
expressed by Judge Vigil in his concurring opinion. See
Aguilera v. PalmHarbor Homes, Inc., 2002-NMSC-029, ¶
6, 132 N.M. 715, 54 P.3d 993 (stating that the Supreme
Court “encourages the Court of Appeals to express its
rationale for any reservations it might harbor over Supreme
Court precedent” (internal quotation marks and citation
omitted)).
VIGIL, Judge (specially concurring).
{25} Paredez raises many difficult questions concerning
what advice a criminal defense lawyer is required to
provide about the immigration consequences of a plea to
render effective assistance of counsel as required by the
Sixth Amendment. In no uncertain terms, our Supreme court
holds: “If a client is a non-citizen, the attorney must
advise that client of the specific immigration consequences
of pleading guilty, including whether deportation would be
virtually certain.” 2004-NMSC-036, ¶ 19 (emphasis
added).
{26} In order to comply with this mandate, two critical
questions must be answered: (1) to what degree must a
criminal defense attorney practicing in state court become
educated and experienced in federal immigration deportation
statutes, process, and case law in order to advise what the
“specific immigration consequences” will be to the
defendant; and (2) to what degree of specificity must
counsel advise the defendant with respect to the
immigration consequences of pleading guilty. These
questions are especially critical to public defenders, who
represent most of the criminal defendants appearing in our
courts including Defendant in this case. Because New Mexico
is a border state, possible immigration consequences are a
concern to a substantial portion of their clients.
Furthermore, since their clients are indigent, they cannot,
by definition, independently hire a separate attorney to
advise them of their own specific immigration concerns.
{27} Even if the foregoing questions can be answered,
Paredez also seems to suggest that when counsel does not
accurately predict the “specific immigration consequences
of pleading guilty,” counsel has rendered ineffective
assistance. On the one hand, Paredez states that counsel
“must” advise her client of “the specific consequences of
pleading guilty,” id. ¶ 19, and on the other hand,
Paredez recognizes that when advice about those
consequences is incorrect, counsel may be deemed to have
rendered ineffective assistance of counsel. Id.
¶¶ 15, 17. Is counsel therefore charged with
the responsibility of accurately predicting what future
course of action the federal government will take in every
specific case? It is recognized that immigration
consequences can be varied, and can depend on a variety of
factors. See, e.g., Thomas Alexander Aleinikoff et al.,
Immigration and Citizenship, Process and Policy 577-78,
581-85 (5th ed. 2003) (pointing out ambiguities and nuances
in the laws and indicating some non-citizens are eligible
for several forms of relief other than removal).
Nevertheless, in case after case, defendants attempt to
withdraw pleas because counsel has inaccurately predicted
the immigration consequences. See Greg S. Sarno,
Annotation, Ineffective Assistance of Counsel:
Misrepresentation, or Failure to Advise, of Immigration
Consequences of Guilty Plea-State Cases, 65 A.L.R. 4th 719
(1988).
{28} Finally, Paredez does not require the court at the
plea hearing to inquire of both the defendant and defense
counsel on the record what specific advice was given to the
defendant about the immigration consequences of the plea.
Instead, as in this case, trial courts are faced with
after-the-fact recitations by defense counsel and the
defendant about the details of their conversations at a
subsequent hearing on ineffective assistance of counsel.
{29} Deportation is much more than a mere “collateral”
consequence of pleading guilty, and often results in much
harsher consequences than the actual sentence itself.
Paredez recognizes this reality and seeks to guarantee that
non-citizens, particularly indigent non-citizens, receive
adequate advice from their attorney about the potential and
probable immigration consequences of pleading guilty, thus
insuring that a guilty plea is knowingly and voluntarily
made. However, in seeking to achieve its objective, Paredez
raises several difficult questions, some of which I have
attempted to set forth. If Paredez was not so specific in
setting forth the obligations of counsel, I would conclude
that the assistance rendered by Defendant’s counsel in this
case was within the range of competence demanded of
attorneys in criminal cases, and therefore effective.
{30} However, the difficult questions raised by Paredez
need not be answered in this case because Paredez not only
requires the attorney to advise the non-citizen client of
“the specific immigration consequences of pleading guilty,”
that advice must also include “whether deportation would be
virtually certain.” Id. ¶ 19. Here, Defendant pled
guilty to false imprisonment in violation of Section
30-4-3, and battery against a household member in violation
of Section 30-3-15. As explained below, these are
“aggravated felonies” under federal immigration law, making
Defendant’s deportation “virtually certain.” Since Defendant
was not advised he was pleading guilty to “aggravated
felonies” making his deportation “virtually certain,”
Paredez requires that Defendant’s plea be set aside if he
can demonstrate the requisite prejudice.
{31} Federal law at 8 U.S.C. § 1227(a)(2)(A)(iii)
states, “Any alien who is convicted of an aggravated felony
at any time after admission is deportable,” and the
Attorney General cannot cancel the removal of an alien who
has been convicted of “any aggravated felony.” 8 U.S.C.
1229b(a)(3). Thus, the deportation of any non-citizen who
commits an “aggravated felony” is “virtually certain.” See
United States v. Amador-Leal, 276 F.3d 511, 516 (9th Cir.
2001) (stating that removal of non-citizens who commit
aggravated felonies is “virtually certain”). An “aggravated
felony” is defined in 8 U.S.C. § 1101(a)(43).
Subsection (F) of this statute includes within the
definition “a crime of violence (as defined in section 16
of Title 18, but not including a purely political offense)
for which the term of imprisonment [is] at least one year.”
18 U.S.C. ¶ 16 in turn states:
The term “crime of violence” means —
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.
{32} False imprisonment under Section 30-4-3 is a felony,
and it “consists of intentionally confining or restraining
another person without his consent and with knowledge that
he has no lawful authority to do so.” Id. At least one
federal court has concluded this offense is a “crime of
violence.” See United States v. Zamora, 222 F.3d 756, 764
(10th Cir. 2000) (concluding that the crime of false
imprisonment under New Mexico law is a “crime of violence”
under sentencing guideline worded identically to 18 U.S.C.
§ 16(a)); see also Dickson v. Ashcroft, 346 F.3d 44,
49-51 (2d Cir. 2003) (concluding that when the restraint
constituting false imprisonment is accomplished by
deception, the offense will either involve the use of force
to effectuate the restraint, or by its nature involve a
substantial risk that force may be used).
{33} Battery against a household member under Section
30-3-15 “consists of the unlawful, intentional touching or
application of force to the person of a household member,
when done in a rude, insolent or angry manner.” This crime
clearly has as an element the use, attempted use, or
threatened use of physical force against the person of
another, and fits the definition of a “crime of violence”
under 18 U.S.C. § 16(a). See Singh v. Gonzales, 432
F.3d 533, 539 (3d Cir. 2006) (concluding that Pennsylvania
misdemeanor crime of simple assault is a “crime of
violence” under 18 U.S.C. § 16(a) because it requires
some physical act by the perpetrator intended to cause fear
of imminent serious bodily injury in the victim).
{34} For the foregoing reasons, I specially concur in the
result reached by the majority.