Beginning in 1986, the Wisconsin Legislature mandated that circuit courts give the following immigration warning to every defendant at the plea hearing: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”¹ If the circuit court fails to give this warning, and the defendant “later shows” the plea “is likely” to result in one of the enumerated immigration consequences, then the defendant is entitled to withdraw the plea under Wis. Stat. section 971.08(2). The Wisconsin Legislature has not altered the original text of this law.

The foreign-born population in Wisconsin has more than doubled since the courts were first required to provide an immigration warning more than 30 years ago.² Deportation does not only affect the immigrant. Over 11 percent of Wisconsin children have at least one foreign-born parent.³ A noncitizen defendant who unwittingly pleads to a deportable offense may be separated from a U.S. citizen child, left to grow up in a single-parent household.

Moreover, the immigration laws have become significantly harsher since the Wisconsin Legislature enacted Wis. Stat. section 971.08(2). Through a series of laws in the 1990s, Congress eliminated many forms of relief for noncitizens convicted of deportable criminal offenses while at the same greatly expanding the number of offenses that trigger immigration consequences.⁴ These “changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.”⁵ As an immigration lawyer, I have represented in removal proceedings clients convicted of even misdemeanor offenses, such as theft, simple possession of marijuana or cocaine, and misdemeanor sex offenses.  

In State v. Reyes Fuerte,⁶ the Wisconsin Supreme Court overruled State v. Douangmala⁷ by holding that a motion under Wis. Stat. section 971.08(2) is also subject to the harmless-error rule. Accordingly, noncitizen defendants who were not given the correct warning under Wis. Stat. section 971.08(1)(c) must also establish that they were not aware of the immigration consequences of conviction. This article serves as a practice advisory on the best strategies to address the harmless error after Reyes Fuerte.

However, the court’s decision in Reyes Fuerte raises an even larger issue: shouldn’t a judge’s failure to provide the immigration warning always be harmless if defense attorneys properly satisfy their Sixth Amendment duty under Padilla v. Kentucky⁸ to advise their noncitizen defendants on the immigration consequences? Unfortunately, the Wisconsin Supreme Court’s interpretation of Padilla has gutted the spirit of the high court’s landmark decision by conflating defense counsel’s Sixth Amendment duty to provide meaningful advice with the circuit court’s statutory requirement to recite a general immigration warning.

This article proposes that circuit courts transcend the basic immigration warning contained in the statute and help elevate the importance for defense attorneys of satisfying their constitutional duty under Padilla. While the court’s statutory immigration warning can remain a procedural safeguard of putting defendants on notice, a confidential and meaningful discussion between attorney and client is far superior to a basic immigration warning recited at the plea hearing or read on a plea questionnaire.

The Holding in State v. Reyes Fuerte

The Wisconsin Supreme Court’s ruling in State v. Reyes Fuerte rests on the premise that when “multiple statutes are at issue, this court seeks to harmonize them through a reasonable construction that gives effect to all provisions.”⁹ The court concluded that the unanimous decision in Douangmala “made no attempt to harmonize” Wis. Stat. section 971.08(2) with the harmless-error component in Wis. Stat. section 971.26.¹⁰ Specifically, the court reasoned that “[a]ll of the relevant statutes use ‘shall’, and accordingly, none is ‘more mandatory’ than any other.”¹¹ Thus, the court held “that applying harmless error analysis does not facially violate § 971.08(2), but failing to apply harmless error analysis does facially violate §§ 971.26 and 805.18.”¹²

Applying the harmless-error analysis to the facts of Reyes Fuerte, the court held that the circuit court’s error of failing to provide the complete immigration warning was harmless for three reasons. First, the defense attorney “testified at the plea withdrawal hearing that he went over the Plea Questionnaire/Waiver of Rights form in Spanish” with the defendant, which contains a “substantially similar” immigration warning “to that of Wis. Stat. § 971.08(1)(c).”¹³ The court thus held that the defendant “had actual knowledge of the potential immigration consequences of his plea.”¹⁴

Second, and most interesting, the court observed that “Reyes Fuerte has not alleged ineffective assistance of counsel under Padilla v. Kentucky.”¹⁵ While the court stated that it was not holding “that the mere lack of a Padilla ineffective assistance claim is sufficient, on its own, to prove actual knowledge” of the immigration consequences, it did find that “the lack of such a claim can be a factor to be included in our consideration to support other facts of record that show actual knowledge and harmless error.”¹⁶

Finally, the court held “the circuit court’s error was harmless because the immigration consequence at issue in this case – deportation – was raised by the circuit court.”¹⁷ The court found that “Reyes Fuerte brought his motion because he was concerned about being deported, not because he was concerned about being denied naturalization.”¹⁸

Old Case Law Back Into Play

Because Reyes Fuerte overruled Douangmala, the decision reinstates “as valid law and binding precedent” the four Wisconsin Court of Appeals decisions that Douangmala had previously overruled.¹⁹ In State v. Chavez, the defendant was not given the immigration warning under Wis. Stat. section 971.08(1)(c), but he acknowledged that “he was aware of the likelihood of deportation when he entered his plea.”²⁰ The court of appeals held that “the legislature did not intend a windfall to a defendant who was aware of the deportation consequences of his plea” and therefore added a harmless-error component under Wis. Stat. section 971.08(2).²¹  

In State v. Issa, the court of appeals ruled that the mere presence of an immigration warning in a plea questionnaire was insufficient to excuse the court from providing the immigration warning in Wis. Stat. section 971.08(1)(c).²² The court of appeals further held that once a defendant establishes a prima facie case under Wis. Stat. section 971.08(2), the burden shifts to the state to show by clear and convincing evidence that the error was harmless.²³

If the defense attorney did not read the warning, then there is a strong argument that a judge’s failure to give the immigration warning was not harmless.

In State v. Lopez, the court of appeals held that the state had met its burden of establishing by clear and convincing evidence that the defendant was aware of the immigration consequences because the defendant’s counsel testified that he advised him that he might be deported.²⁴ The defense counsel also testified “that he went over the plea questionnaire line by line with Lopez, including the paragraph that warns the accused about the possibility of deportation.”²⁵

Finally, in State v. Garcia, the court did not provide the entire immigration warning under Wis. Stat. section 971.08(1)(c) in a similar fashion like the court in Reyes Fuerte.²⁶ While the court of appeals acknowledged it was error to have not given the entire immigration warning, the error was found harmless because the risk of deportation “was a prime consideration in the negotiation of the plea agreement.”²⁷

Postconviction Strategy After Reyes Fuerte

With the harmless-error rule back, attorneys should consider the following steps to assess whether there is a viable basis to withdraw a plea under Wis. Stat. § 971.08(2):

1) Find out what was said at the plea and sentencing hearing. If immigration was discussed during the plea or sentencing hearing, it is unlikely the harmless-error rule can be overcome. For example, it is not uncommon for a defense attorney to argue for less jail time in light of the client likely being deported. Some defense attorneys may explain the precise immigration consequences on the record. On the other hand, the lack of any discussion about immigration on the record can serve as evidence that the defendant was not aware of the consequences.

2) Ask the client what he or she remembers. The client’s recollection leading up to the plea hearing is key. Does the client recall the defense attorney asking about immigration status? How and when did the client first learn that the plea carried an immigration consequence? Did the client consult with an immigration lawyer before accepting the plea? In cases in which a client admits that the immigration consequences were understood, the harmless error will foreclose a motion under Wis. Stat. section 971.08(2).

3) Carefully review the plea questionnaire with the client. Because the plea questionnaire contains an immigration warning, the client’s memory of signing it will be the most crucial evidence. Was it signed at the defense attorney’s office or at the courthouse? How long did it take to review? Did the defense attorney read it out loud? Was an interpreter needed? Was anyone else present when the plea questionnaire was reviewed?

Most important, the client should try to remember whether the defense attorney read out loud the general immigration warning contained in the plea questionnaire. If the defense attorney did not read the warning, then there is a strong argument that a judge’s failure to give the immigration warning was not harmless.

This argument might be available even in situations when a defense attorney did read the warning out loud. It takes only 10 seconds or so to read the warning in the plea questionnaire.²⁸ Does a 10-second recital truly establish an understanding of the consequences? Did the defense attorney ask if the client understood the warning? Did the defense attorney explain the difference between “deportation” and “exclusion from admission”? If the answers to these questions are no, then it is possible that the client did not understand the immigration consequences.

Postconviction counsel should also see if there are any markings near the immigration warning on the plea questionnaire. For instance, if it is crossed out, that would be strong evidence that the defense attorney assumed it did not apply. Conversely, if the warning is checked or circled that would suggest that the immigration warning was read by the defense attorney.

4) Obtain a full copy of the prior defense counsel’s file. Postconviction counsel should request the entire file – including all notes – from the former defense attorney. If the lawyer’s notes do not mention anything about immigration, then the client may have an even better argument that the immigration consequences were not discussed.

5) Find out the prior defense counsel’s position. Because the court in Reyes Fuerte emphasized the lack of a Padilla claim as evidence of harmless error, the client’s affidavit should allege that prior defense counsel was ineffective in not explaining the immigration consequences. Postconviction counsel should respectfully lay out the client’s allegations and offer former defense counsel an opportunity to provide any rebuttal evidence. When a defense attorney concedes error, an affidavit from prior counsel could obviate the need for an evidentiary hearing.

6) Pursue plea withdrawal under “exclusion from admission” if feasible. In State v. Negrete, the court held that a defendant must demonstrate “a causal nexus between the entry of the guilty or no contest plea at issue and the federal government’s likely institution of adverse immigration actions.”²⁹ The court stated that a defendant must demonstrate that the government has “manifested its intent to institute one of the immigration consequences listed in § 971.08(2),” such as becoming “subject to deportation proceedings.”³⁰

In State v. Valadez, the court clarified its Negrete holding, finding that in the context of a plea that results in “exclusion from admission” the “circuit court mistakenly required Ms. Valadez to show that the federal government has taken steps to exclude her from admission.”³¹ The court held that Wis. Stat. § 971.08(2) “does not require such a showing” because “the immigration and naturalization statutes demonstrate the likelihood that Ms. Valadez will be excluded from admission.”³² The court observed that “Negrete was a deportation case, and the standard it sets forth governs deportation; it does not govern ‘likely’ exclusion from admission.”³³

Because it may be easier to establish the nexus between the plea and “exclusion from admission,” a Wis. Stat. section 971.08(2) motion should be pursued under that basis. Furthermore, while “deportation” is likely an easier concept for a defendant to grasp, the term “exclusion from admission” is less likely to be understood by the average defendant, especially if the defendant does not understand English.

7) Approach the district attorney first. Finally, there may be tremendous value in approaching the district attorney before filing the postconviction motion. Remember that a defendant is entitled to an evidentiary hearing if the court failed to comply with Wis. Stat. section 971.08(1)(c). Under State v. Issa, the state must present clear and convincing evidence during the evidentiary hearing that the defendant was aware of the immigration consequences. The clear and convincing standard “requires evidentiary proof to a reasonable certainty.”³⁴ It is considered a “heavy burden” to satisfy.³⁵

In some cases, prosecutors may prefer to negotiate a new deal as part of the motion or to dismiss outright rather than expend resources on an evidentiary hearing.

Padilla Versus Generic Immigration Warnings

Although plea withdrawal under Wis. Stat. section 971.08(2) is still possible even after State v. Reyes Fuerte, a robust fulfillment of counsel’s Sixth Amendment duty under Padilla would always render a court’s failure to give the immigration warning a harmless error. This is precisely what the state argued in Reyes Fuerte.³⁶ 

Unfortunately, the Wisconsin Supreme Court’s confusing interpretation of Padilla does not help. The court in State v. Shata³⁷ equated a defense attorney’s duty under Padilla with the court’s statutory duty to provide a general immigration warning. The court stated that the “Padilla Court suggested that an attorney would give reasonably competent advice by providing a warning similar to the one that Wis. Stat. § 971.08 requires a circuit court to give: that an alien’s conviction may result in deportation.”³⁸ The Court further reasoned that if the duty under Padilla and the Wis. Stat. § 971.08(1)(c) warnings were not the same, “then an alien defendant would receive inconsistent immigration warnings when pleading guilty or no contest.”³⁹

The Shata decision betrays the plain language of Padilla. The U.S. Supreme Court’s opinion begins by stating deportation “is now virtually inevitable for a vast number of noncitizens convicted of crimes.”⁴⁰ The Court emphasized this point repeatedly in the opinion, stating separately that “recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders.”⁴¹ With respect to the deportation statute for drug offenses, the Court found that it “specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses” and Padilla’s “deportation was presumptively mandatory.”⁴²

The terms “virtually inevitable,” “automatic,” and “mandatory” do not suggest that the Court in Padilla intended defense attorneys to simply mimic a court’s boilerplate immigration warning when the consequences are both so clear and dire. A defense attorney informing a noncitizen client that a plea “may result” in deportation is not providing “accurate legal advice” if removal is “virtually inevitable.”

In some cases, prosecutors may prefer to negotiate a new deal as part of the motion or to dismiss outright rather than expend resources on an evidentiary hearing.

Conflating the statutory immigration warning with counsel’s constitutional duty under Padilla becomes even more nonsensical in the context of “exclusion from admission.” For example, misdemeanor possession of cocaine is clearly an inadmissible offense under the plain terms of the Immigration and Nationality Act (INA) as acknowledged in State v. Valadez.⁴³ In fact, there is not a waiver of inadmissibility for possession of cocaine, which essentially renders a noncitizen permanently inadmissible.⁴⁴ How can warning a noncitizen that a plea to possession of cocaine “may result” in “exclusion from admission” be considered accurate advice under Padilla?

Yet in Shata the court was not concerned that the defense attorney failed to read the relevant immigration statutes. The court stated that “[n]owhere in Padilla did the Court state that not specifically reading the immigration statutes is the equivalent of giving misadvice.”⁴⁵ Unfortunately, the court’s weak interpretation of Padilla may discourage defense attorneys from completing the most basic legal research, such as reading the relevant portion of the INA to confirm that possession of cocaine is clearly an inadmissible offense.

In State v. Ortiz-Mondragon,⁴⁶ the Wisconsin Supreme Court held that when an immigration consequence is not clear, a defense attorney satisfies Padilla by conveying the general immigration warning on the plea questionnaire. The court found the “warning was correct and adequate under Padilla because it informed [the defendant] that a conviction may carry a risk of adverse immigration consequences.”⁴⁷

However, a lawyer’s mere recital of this general admonition from the plea questionnaire should not alone satisfy counsel’s Sixth Amendment duty under Padilla. Defense counsel must ascertain whether an immigration consequence is clear and succinct under Padilla.⁴⁸ That involves first ascertaining a client’s immigration status and then investigating whether the pending criminal charge triggers a clear immigration consequence. A defense attorney cannot complete that task at the end of the case by reading a basic warning on the plea questionnaire.

More importantly, when a defendant is reviewing a plea questionnaire, it means that a plea agreement has already been negotiated and finalized. Under Padilla, defense counsel must advise a noncitizen defendant about the immigration consequences well before a plea agreement is reached. How can Padilla be satisfied by reading an immigration warning in the plea questionnaire right before the plea hearing?

The Wisconsin Court of Appeals’ recent unpublished decision in State v. Perez-Basurto⁴⁹ illustrates a correct interpretation of Padilla. In that case, the defendant filed a postconviction motion based on his counsel’s failure to inform him that his pleas to three misdemeanor offenses would result in revocation of his Deferred Action for Childhood Arrivals (DACA) status.⁵⁰ The defense attorney conceded that he did not understand what DACA meant and “could not recall discussing Perez-Basurto’s specific immigration status.”⁵¹

On appeal, the state relied on Shata by arguing that defense counsel adequately advised the defendant “of his deportation risk because counsel discussed the risk at the time of the plea hearing, and also reviewed the plea questionnaire with Perez-Basurto.”⁵² The state also pointed out that “the section of the plea questionnaire addressing the deportation risk is underlined and circled, suggesting that counsel did discuss the risk with Perez-Basurto.”⁵³

In affirming the circuit court’s decision, the court of appeals emphasized that “defense counsel could not recall the extent of his conversations” with the defendant regarding his “immigration concerns.”⁵⁴ Nor could defense counsel even explain the immigration consequences of the pleas he advised the client to accept. Importantly, the court of appeals held that “[w]here counsel was not even aware of Perez-Basurto’s immigration status, we cannot conclude that counsel provided Perez-Basurto with adequate advice regarding his deportation risk.”⁵⁵ By focusing on defense counsel’s failure to do any investigation on the client’s immigration status, the Perez-Basurto decision is persuasive authority on what counsel must do to comply with Padilla.

Encouraging Defense Attorneys to Discuss Immigration

Because adherence to Padilla requires a meaningful conversation between counsel and client during the earlier stages of representation, I recommend that circuit courts voluntarily give this advisal to defense attorneys at the preliminary hearing regardless of the defendant’s ethnicity:

“I am prevented from asking the defendant about immigration status under Wisconsin Statutes section 971.06(3). However, do you understand that you have a Sixth Amendment duty under Padilla v. Kentucky to accurately advise a noncitizen defendant regarding any potential immigration consequences of the charges or future guilty or contest plea? And do you further understand that asking your client’s immigration status is the first step under Padilla?”⁵⁶

Such an advisal could help initiate an important conversation between defense counsel and client. As emphasized by the Court in Padilla, “[c]ounsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation.”⁵⁷ A plea negotiation strategy that avoids or minimizes future immigration consequences is a better outcome for noncitizens than having to file a postconviction motion under Padilla or Wis. Stat. section 971.08(2).

Endnotes

¹ Wis. Stat. § 971.08(1)(c). See also State v. Baeza, 174 Wis. 2d 118, 124, 496 N.W.2d 233 (Ct. App. 1993) (noting the effective date was April 24, 1986).

² Migration Policy Institute, Wisconsin State Immigration Data Profiles, (last visited April 5, 2018).

³ Id.

⁴ For a good summary of these changes, see Padilla v. Kentucky, 559 U.S. 356, 360-64 (2010). The Court explained that “while once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.” Id. at 360.

⁵ Id. at 364.

⁶ State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773.

⁷ State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1.

⁸ Padilla, 559 U.S. at 367 (The “weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”).

⁹ Reyes Fuerte, 2017 WI 104, ¶ 29, 378 Wis. 2d 504.

¹⁰ Id. ¶ 30.

¹¹ Id. ¶ 32.

¹² Id.

¹³ Id. ¶ 38.

¹⁴ Id.

¹⁵ Id. ¶ 39.

¹⁶ Id.

¹⁷ Id. ¶ 40.

¹⁸ Id.

¹⁹ Id. ¶ 36.

²⁰ State v. Chavez, 175 Wis. 2d 366, 369, 498 N.W. 2d 887 (Ct. App. 1993).

²¹ Id. at 371.

²² State v. Issa, 186 Wis. 2d 199, 209, 519 N.W. 2d 741 (Ct. App. 1994).

²³ Id. at 211.

²⁴ State v. Lopez, 196 Wis. 2d 725, 728, 539 N.W. 2d 700 (Ct. App. 1995).

²⁵ Id.

²⁶ State v. Garcia, 2000 WI App 81, ¶ 4, 234 Wis. 2d 304, 610 N.W.2d 180.

²⁷ Id. ¶ 14.

²⁸ The author has been timed reading the immigration warning out loud at a normal pace of speaking.

²⁹ State v. Negrete, 2012 WI 92, ¶ 26, 343 Wis. 2d 1, 819 N.W. 2d 749.

³⁰ Id. ¶ 27 n.8.

³¹ State v. Valadez, 2016 WI 4, ¶ 45, 366 Wis. 2d 332, 874 N.W. 2d 514.

³² Id.

³³ Id. ¶ 36.

³⁴ Town of Schoepke v. Rustick, 2006 WI App 222, ¶ 11, 296 Wis. 2d 471, 723 N.W. 2d 770.

³⁵ State v. McMorris, 213 Wis. 156, 167, 570 N.W.2d 384 (1997) (stating that the state has “the heavy burden of producing clear and convincing evidence for admission of in-court identification.”)

³⁶ The state’s principal argument on appeal was that “[i]n light of Padilla, Douangmala should be overturned to reinstate application of the harmless error rule in cases where circuit courts fail to provide the statutory immigration warning.” See Brief of Plaintiff-Petitioner at 8, State v. Reyes Fuerte, No. 2015AP2041-CR (Feb. 17, 2017). As the dissent in Reyes Fuerte correctly points out, the majority decision simply ignored the state’s central argument on appeal to formulate its own rationale for overruling Douangmala based on arguments never raised by the state. See Reyes Fuerte, 2017 WI 104, ¶ 43, 378 Wis. 2d 504 (Abrahamson, J., dissenting).

³⁷ State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W. 2d 93.

³⁸ Id. ¶ 65.

³⁹ Id. ¶ 67.

⁴⁰ Padilla, 559 U.S. at 360 (emphasis added).

⁴¹ Id. at 366 (emphasis added).

⁴² Id. at 368-69 (emphasis added).

⁴³ Valadez, 2016 WI 4, ¶¶ 33, 44, 366 Wis. 2d 332; see also 8 U.S.C. § 1182(a)(2)(A)(i)(II).

⁴⁴ See 8 U.S.C. § 1182(h) (only a single offense for simple possession of marijuana of 30 grams or less for one’s own personal use may be waived).

⁴⁵ Shata, 2015 WI 74, ¶ 75, 364 Wis. 2d 63.

⁴⁶ State v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717.

⁴⁷ Id. ¶ 63.

⁴⁸ Padilla, 559 U.S. at 369 (When the immigration consequence “is truly clear … the duty to give correct advice is equally clear.”). In contrast, when “the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. (emphasis added).

⁴⁹ State v. Perez-Basurto, No. 2016AP2136-CR, 2017 WL 3037543 (Wis. Ct. App. July 18, 2017) (unpublished opinion citable for persuasive value per Wis. Stat. § 809.23(3)(b)).

⁵⁰ Id. ¶ 4.

⁵¹ Id. ¶ 6.

⁵² Id. ¶ 10.

⁵³ Id.

⁵⁴ Id. ¶ 12.

⁵⁵ Id.

⁵⁶ In addition to the Wisconsin Court of Appeals in State v. Perez-Basurto, several other courts have ruled that Padilla mandates the defense attorney inquire into immigration status. See, e.g., People v. Picca, 947 N.Y.S. 2d 120, 126 (App. Div. 2012) (“[T]o require that defendants apprehend the relevance of their non-citizenship status, and affirmatively provide this information to counsel, would undermine the protection that the Padilla Court sought to provide to noncitizen defendants”); Commonwealth v. Clarke, 949 N.E. 2d 892, 905 (Mass. 2011) (“That the defendant’s counsel failed to ascertain that the defendant was not a United States citizen may be sufficient to satisfy” the ineffectiveness prong under Padilla “because effective representation requires counsel to gather at least enough personal information to represent him.”). Even before Padilla one state supreme court held that “criminal defense attorneys are obligated to determine the immigration status of their clients.” State v. Paredez, 101 P.3d 799, ¶ 19 (N.M. 2004).

⁵⁷ Padilla, 559 U.S. at 373 (emphasis added).