Criminal Defense Attorneys Have A Duty To Determine A Criminal Defendant's Citizenship And Immigration Status, Determine The Immigration Consequences In Order To Know The Best Course For The Client, And Must Inform The Client Of The Immigration Consequences.

by Tova Indritz

On August 31, the New Mexico Supreme Court unanimously held that a criminal defendants attorney has an affirmative duty to determine [the clients] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.

In State v. Paredez, No. 28,270, the court address[ed] the role of criminal defense attorneys in informing their clients of the immigration consequences of a guilty plea, and held that both affirmatively wrong advice and nonadvice are ineffective assistance of counsel.

We hold that criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a noncitizen, 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. Furthermore, requiring the attorney to give such advice is consistent with the spirit of Rule 5303(E)(5), which prohibits the district court from accepting a guilty plea without first determining that the defendant has an understanding of the immigration consequences of the plea. An attorneys failure to provide the required advice regarding immigration consequences will be ineffective assistance of counsel if the defendant suffers prejudice by the attorneys omission.

The opinion, by Justice Minzner, also suggests a redraft of the rule with respect to the trial judges duties in accepting a plea.

I am pleased that I represented the three amicus in this matter, the New Mexico Criminal Defense Lawyers Association, the New Mexico Civil Liberties Foundation (litigation arm of the ACLU of NM), and the National Immigration Project of the National Lawyers Guild.

Gone are the days when criminal defense lawyers can stick to outmoded racial and linguistic stereotypes and bemoan, after a plea, that ithe client spoke such good English; who knew he wasnit a citizen?i or, even more astounding, ibut he was black!i (as if all black people in the world were U.S. citizens). We need to ask everyone who comes to our offices for advice, or who we see in jail, where they were born, and if they have an answer that is a place outside the United States, then to inquire further into their current immigration status and past immigration history, the same way we determine a detailed criminal conviction history.

Immigration consequences can often be far more serious to the clientis life than the criminal consequences, as is the case for Mr. Paredez, who got three years probation and would suffer deportation to Guatemala and be unable to return to his family in the U.S. for at least twenty years and probably forever. Therefore, when a client is considering a plea, we cannot just say that this plea imayi have an effect on his/her immigration status; we have to tell the client exactly what the law is and what effect the plea will have on the clientis immigration status, so that the client can make a knowing, informed, intelligent, and voluntary choice about his/her options.

While other states have ruled that giving affirmatively wrong advice about the immigration consequences is ineffective assistance of counsel, the New Mexico Supreme Court is to be commended for its failure to investigate and advise holding. Already I have gotten inquiries from lawyers trying to persuade other statesi highest courts of the same position.

This ruling will benefit thousands of our clients and underscores our need to understand the immigration consequences, or else to hire another lawyer who does to consult with us, or we will be committing both ineffective assistance of counsel and malpractice.