By: Sarah Flinn
The Wisconsin Supreme Court recently held that a migrant defendant is permitted to withdraw a guilty plea if she is able to show that the judge presiding over the plea hearing failed to notify her of “likely” adverse immigration consequences of conviction, as required by state statute, and that the guilty plea is now “likely” to result in adverse immigration consequences. State v. Valadez, Nos. 2014AP678, 2014AP679, 2014AP680, 2016 WL 325524, at *2, *6 (Wis. Jan. 28, 2016). In contrast to previous Wisconsin caselaw regarding the burden of proof required to show “likely” deportation, the court concluded that the migrant defendant is able to prove that the guilty plea is “likely to result in . . . exclusion from admission” using the language of the Immigration and Naturalization Act alone. Id. at *6. The Wisconsin Court of Appeals certified Melisa Valadez’s case to the Supreme Court after Ms. Valadez appealed the trial court’s decision to deny her motion to withdraw her guilty pleas from convictions in 2004 and 2005. Id. at *1, *3.
Ms. Valadez became a legal permanent resident in 2001, at the age of 15, and has continued to maintain this status. Id. at *3. In 2004 and 2005, Ms. Valadez pled guilty to three separate drug convictions, fulfilled all of the conditions imposed by the court and has since had no additional convictions. Id. In 2013, Ms. Valadez filed a motion to withdraw her guilty pleas pursuant to Wis. Stat. § 971.08(2) which permits a defendant to withdraw a guilty plea and enter another plea if a court fails to advise her of the immigration consequences of the guilty plea as required by Wisconsin Statute § 971.08(1)(c) and the guilty plea is now “likely to result in the defendant’s deportation, exclusion from admission . . . or denial of naturalization.” Id. at *1, *3. Wisconsin Statute § 971.08(1)(c) requires that prior to accepting a guilty plea, trial courts advise migrant defendants that a guilty plea or a plea of no contest will “likely” result in deportation, exclusion from admission, or denial of naturalization. Wis. Stat. § 971.08(1)(c) (2011-12).
Neither of the presiding judges in Ms. Valadez’s 2004 and 2005 cases advised her of the immigration consequences for her guilty pleas and there is no dispute that this meets the first requirement of Wis. Stat. § 971.08(2) for withdrawing the pleas. Valadez, 2016 WL 325524, at *1. After the trial court denied Ms. Valadez’s motion to withdraw the guilty pleas, Ms. Valadez appealed her case to the Wisconsin Court of Appeals. Id. The court of appeals certified the case to the Wisconsin Supreme Court with two questions: first, whether Ms. Valadez’s motion to withdraw her guilty pleas satisfied the “likely” statutory requirement in Wis. Stat. § 971.08(2) and second, whether there is a time limit for a defendant to file a motion to withdraw a plea based on Wis. Stat. § 971.08(2). Id. The Supreme Court of Wisconsin concluded that Ms. Valadez demonstrated both that the trial court did not properly advise her of “likely” immigration consequences of her guilty pleas and that those guilty pleas are now “likely” to result in her exclusion from admission. Id. at *2. Because the court first determined that Ms. Valadez’s guilty pleas were likely to result in exclusion from admission, it declined to address whether the pleas were likely to result in deportation or denial of naturalization. Id. The court also declined to answer the time limit issue because neither party argued for a time limit and, furthermore, both parties agreed that even if there were to be a time limit, Ms. Valadez’s motion is timely. Id.
The trial court concluded that Ms. Valadez had not demonstrated that she was “likely” to suffer negative immigration consequences because she was currently not in deportation proceedings, nor was she being denied admission or naturalization. Id. at 4. Therefore, she had failed to meet the second requirement of Wis. Stat. § 971.08(2) and the court was not required to permit her to withdraw her guilty pleas. Id. at *4. The Wisconsin Supreme Court focuses on the fact that if Ms. Valadez, a lawful permanent resident, were to leave the U.S. and attempt to return, she would likely be excluded from admission based on the guilty convictions. Id. at *5. INA § 212(a)(2)(A)(i)(II) states that any person convicted of a violation of any law or regulation of the United States related to a controlled substance is inadmissible.
The Wisconsin Supreme Court has addressed the issue of establishing that deportation is “likely” under Wis. Stat. § 971.08(2) in State v. Negrete, 819 N.W.2d 749 (Wis. 2012). The Negrete court concluded that a migrant defendant needed to assert more than “bare allegations” and required a “causal nexus” between the guilty plea and the “likely” initiation of deportation proceedings. Id. at 757. The Supreme Court distinguishes Ms. Valadez’s case from the facts of Negrete because the standard set forth in Negrete only controls “likely” deportation and does not govern “likely” exclusion from admission. Valadez, 2016 WL 325524, at *5. In deportation proceedings, immigration officials seek out deportable individuals. Id. at *6. In contrast, a noncitizen would have to take affirmative steps in order to be excluded from admission, i.e., the noncitizen would have to leave the country and attempt to re-enter. Id. According to the standard set forth in Negrete, Ms. Valadez would affirmatively have to leave the country and attempt to return in order to demonstrate that she is “likely” to be excluded from admission. Id. Requiring Ms. Valadez to leave the country and seek readmission is, in the court’s view, equivalent to requiring her to demonstrate with “100% certainty” that she will be excluded. Id. Because the statutorily required standard for plea withdrawal is “likely” and not “certain,” the court determines that Ms. Valadez can demonstrate that she is likely to be excluded from admission by relying on the immigration and naturalization statutes. Id. Ms. Valadez’s convictions are listed as grounds for exclusion, which the court concludes is likely keep Ms. Valadez from lawfully returning to the U.S. if she were to leave. Id. at *7. Therefore, it is “likely” that her guilty pleas would result in exclusion from admission, satisfying the statutory requirement of Wis. Stat. § 971.08(2). Id. The court remanded the case to the trial court to vacate the judgments of conviction and to allow Ms. Valadez to withdraw her guilty pleas and enter other pleas. Id.
Sarah Flinn is a current 2L student at the University of Denver Sturm College of Law, focusing on immigration and asylum law. She is currently completing an externship with Rocky Mountain Immigration Advocacy Network.
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