State v. Gach, 297 Neb. 96

Background

In 2010 Buoy P. Gach (noncitizen) pleaded no contest to first-degree assault; remaining counts dismissed; sentenced to 10–20 years.
The change-of-plea colloquy contained an improvised immigration advisement: the court said his immigration status "could be affected" and he "could be deported," but did not recite the verbatim statutory language.
An ICE immigration detainer was filed in April 2010 and DCS planned to hold Gach on completion of his sentence so DHS could assume custody to determine removability.
In 2014 Gach moved to vacate his conviction and withdraw his plea under Neb. Rev. Stat. § 29-1819.02(2), claiming the court failed to give the required advisement and that he faced immigration consequences not communicated.
The district court found the court had not given the verbatim advisement (first Yos‑Chiguil factor satisfied) but concluded Gach was warned he could be deported and thus had not shown an immigration consequence not included in the advisement; the motion was denied.

Issues

Issue	Gach's Argument	State's Argument	Held
Whether the trial court’s improvised advisement satisfied § 29-1819.02(1) / Yos‑Chiguil first factor	Court failed to give the verbatim statutory advisement required by § 29-1819.02(1)	Even a succinct warning that defendant could be deported informed Gach of the immigration consequence	Court: first factor satisfied — court did not give the verbatim advisement (improvised language)
Whether Gach "actually faces" immigration consequences triggering § 29-1819.02 protections	Gach: ICE detainer and planned DHS custody on release mean he faces removal	State: same factual concession but contends advisement warned of deportation/removal	Court: Gach does actually face removal (detainer suffices)
Whether the court’s advisement failed to communicate an immigration consequence Gach is actually facing (Yos‑Chiguil second factor)	Gach: the statutory advisement was not given, so he was not informed of the specific consequence of removal	State: court told him his immigration status could be affected and he could be deported — that warning encompassed removal	Court: held Gach failed to prove by clear and convincing evidence that removal was not communicated; second factor not met
Remedy — whether conviction must be vacated and plea withdrawn under § 29-1819.02(2)	Because the advisement was improper, relief is required	No relief because the crucial immigration consequence (removal) was communicated	Court: denial of motion affirmed; no abuse of discretion

Key Cases Cited

State v. Yos‑Chiguil, 278 Neb. 591 (2009) (established two‑part test under § 29-1819.02: (1) advisement omission and (2) facing an unadvised immigration consequence)
State v. Mena‑Rivera, 280 Neb. 948 (2010) (ICE detainer establishes that a defendant "actually faces" immigration consequences)
State v. Rodriguez, 288 Neb. 714 (2014) (emphasizes that courts should recite the precise statutory immigration advisement)
State v. Ortega, 290 Neb. 172 (2016) (standard of review: plea‑withdrawal denials reviewed for abuse of discretion)