State v. Gach, 297 Neb. 96

Background

In 2010 Buoy P. Gach, a noncitizen, pleaded no contest to one count of first-degree assault; he was sentenced to 10–20 years’ imprisonment; other charges were dismissed.
At the plea hearing the court did not recite the verbatim immigration advisement required by Neb. Rev. Stat. § 29-1819.02(1); the court told Gach his immigration status "could be affected" and that he "could be deported."
In April 2010 ICE filed an immigration detainer with the Department of Correctional Services (DCS) to assume custody at the end of Gach’s sentence to determine removability.
In 2014 Gach filed a motion under § 29-1819.02(2) to vacate his conviction and withdraw his plea, alleging the court failed to give the proper immigration advisement.
The district court found the statutory advisement was not given (first Yos-Chiguil factor satisfied) but concluded Gach was warned of the removal consequence (second factor not satisfied) and denied the motion; Gach appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to give verbatim § 29-1819.02(1) advisement requires vacatur	Gach: court did not give the required advisement; thus relief under § 29-1819.02(2) is available	State: substantial compliance or the improvised advisement was sufficient	Court: Failure to give verbatim advisement satisfies first Yos-Chiguil factor, but verbatim language not strictly dispositive here because outcome turned on second factor
Whether Gach actually faces immigration consequences covered by § 29-1819.02	Gach: ICE detainer shows he actually faces removal	State: argues the court’s advisement warned of deportation/removal, so no unadvised consequence existed	Court: ICE detainer establishes Gach actually faces removal (satisfies part of test)
Whether the advisement as given omitted the immigration consequence Gach faces	Gach: the improvised language was insufficient and failed to warn of the specific consequence (removal)	State: court told Gach his immigration status could be affected and he could be deported; that communicated the removal consequence	Court: Gach failed to show by clear and convincing evidence that removal was not communicated; second Yos-Chiguil factor not satisfied
Whether the district court abused its discretion in denying plea withdrawal	Gach: denial was erroneous because statutory advisement was not given and consequence was not warned	State: no abuse of discretion because Gach was advised of deportation and faces no additional unadvised consequence	Court: no abuse of discretion; denial affirmed

Key Cases Cited

State v. Yos-Chiguil, 278 Neb. 591 (establishing two-part test under § 29-1819.02(2))
State v. Mena-Rivera, 280 Neb. 948 (holding an ICE detainer shows a defendant "actually faces" immigration consequences)
State v. Rodriguez, 288 Neb. 714 (discussing importance of giving statutory advisement verbatim and urging strict compliance)
State v. Ortega, 290 Neb. 172 (noting standard of review for plea-withdrawal denials)