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  • WisBar News
    January 26, 2015

    Court Certifies Questions on Plea Withdrawals When Deportation Possible

    Joe Forward
    Legal Writer

    Jan. 26, 2015 – A state appeals court has certified criminal cases to decide the point at which deportation becomes “likely” enough to allow a defendant to withdraw a plea on the basis that they were not informed of the immigration consequences of the plea.

    The state supreme court has already accepted two cases to determine the extent of defense counsel’s obligation to inform clients of the immigration consequences of no contest or guilty pleas. Now it may decide what happens when the court does not warn defendants about immigration consequences during the plea colloquy.

    The appeals court certified State v. Valdez, three consolidated cases against Melisa Valdez, a legal permanent resident who has three children who are U.S. citizens. Valdez was convicted on drug charges and subject topotential deportation if convicted.

    In addition, federal immigration statutes would not allow her to be readmitted into the U.S. and could affect her ability to renew her legal permanent resident status. But Valdez claims she didn’t know that when she pleaded guilty to the charges.

    Wis. Stat. section 971.08 requires circuit courts to inform defendants who are not U.S. citizens that a plea of guilty or no contest could result in deportation.

    If the court doesn’t warn the defendant and defendant later shows that a plea “is likely to result in deportation,” the defendant can withdraw the plea. The state conceded that Valdez was not warned but argued that Valdez did not prove deportation was likely.

    The appea​l court, in its certification, asks what the defendant must show to fulfill the “likely” standard. “[I]s it enough for the defendant to show that he or she is automatically subject to deportation under specifically identified federal law?” the appeals court asks.

    “If so, do any applicable exclusions or possibilities of discretionary waiver change the analysis? Or, must the federal government affirmatively act to ‘manifest its intent to institute one of the immigration consequences listed in § 971.08(2)?”

    The appeals court asks for clarification on what triggers the defendant’s right to plea withdrawal. Is it a letter that highlights the likelihood of deportation, a notification that deportation proceedings are underway, or an actual determination on deportation?

    “The degree of certainty necessary to show, for purposes of plea withdrawal under Wis. Stat. § 971.08(2), that a defendant is likely to suffer immigration consequences as a result of a guilty plea is not clear under existing case law,” the certification states. “The courts, the bar, and the public would benefit from a resolution on this recurring question.

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