Nebraska Supreme Ct: Trial ct must warn defendant of immigration consequences just before accepting plea

The Nebraska Supreme Court held that a trial court must advise a defendant about potential immigration consequences of a guilty or nolo contendere plea just before accepting the plea. State v. Mena-Rivera, 280 Neb. Rep. 948 (Dec. 17, 2010). Justice Connolly wrote the Court’s opinion.

Nebraska trial court judges are statutorily required to “advise a defendant that the plea could result in removal from the United States or a
denial of naturalization.” Neb. Rev. Stat. § 29-1819.02. This case involved an LPR who was advised as such at the time that he entered a not guilty plea at his arraignment. Mena-Rivera, 280 Neb. Rep. at 949. “But later, when under a plea bargain he pleaded guilty to a lesser offense, the court failed to repeat the advisement.” Mena-Rivera, 280 Neb. Rep. at 949-50. Mena-Rivera then sought to withdraw his guilty plea on the basis that the trial court failed to advise him at the time he entered the guilty. Mena-Rivera, 280 Neb. Rep. at 950.

The Court construed § 29-1819.02’s requirement that the trial court’s advisal be given “prior” to accepting a guilty or nolo plea “to mean that the court should give the advisement immediately before the defendant enters a guilty plea or nolo contendere plea….” Mena-Rivera, 280 Neb. Rep. at 953. Because “weeks or months may often pass between when a court initially arraigns a defendant and when the defendant enters his plea of guilty or nolo contendere” and because “defendants often plea to a lesser charge than what they were initially arraigned on,” the Court concluded that the trial court’s admonishment at Mena-Rivera’s arraignment did not satisfy the statutory requirement. Mena-Rivera, 280 Neb. Rep. at 953-54.

Because the advisal requirement imposed by § 29-1819.02 only applies to immigration consequences, the Court then addressed “whether Mena-Rivera faces an immigration consequences of which the court did not warn him.” Mena-Rivera, 280 Neb. Rep. at 955. Rather than force trial court’s to determine whether individual defendant’s face immigration consequences as a result of pleas, the Court concluded that the ICE detainer submitted by Mena-Rivera was sufficient evidence that he did in fact face some immigration consequence as a result of his plea. Mena-Rivera, 280 Neb. Rep. at 955.