Lead Opinion
{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,
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
{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 ease 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 tohappen. 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]peeific 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,
[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 pleaprocess 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,
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,
{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
{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.
The Present Case
{15} Although in the present case the district court found that Defendant’s attorney “discussed in detail [Djefendant’s immigration status with him including the con sequences of his plea,” the evidence was
{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] [aggravated felony” or “a crime of domestic violence.” See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(E)© (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)® (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(e) (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,
{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.
{19} We turn now to the second prong of the Strickland test: whether the ineffective assistance of counsel prejudiced Defendant. Paredez,
{20} “[T]here are no mechanical rules for determining prejudice.” Barnett,
{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,
{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,
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.
Notes
. 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,
. 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. Palm Harbor Homes, Inc.,
Concurrence Opinion
(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.”
{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 then-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 ease 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,
{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
{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,
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,
{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,
{34} For the foregoing reasons, I specially concur in the result reached by the majority.