SCOW: Likely exclusion from U.S. permits plea withdrawal

State v. Melisa Valadez, 2016 WI 4, 1/28/2016, on certification from the court of appeals; case activity (including briefs)

What looked like a case about the meaning of “likely to result in … deportation” has turned into something else entirely: in a fractured decision, the court holds that the defendant has successfully shown she is likely to be excluded from admission to the country and raises, but does not resolve, the possibility that plea withdrawal claims for failure to give the required immigration warning must be brought within the time limits of Wis. Stat. Rule 809.30 (or perhaps within the strictures of Wis. Stat. § 974.06).

Valadez is not a U.S. citizen but is a lawful permanent resident.  In 2004 and 2005, she pled guilty in separate cases to possessing cocaine, THC, and paraphernalia. (¶17). At none of her plea hearings did the judge give the Wis. Stat. § 971.08(1)(c) immigration warning. (¶19). She is no longer under any sentence from these convictions, and has no others. (¶20).

In 2013 Valadez filed a motion to withdraw her pleas, noting the court’s failure to give the warnings and alleging that she is subject to deportation, exclusion from admission to the country, and denial of naturalization as a result of  her convictions. (¶21). Such a motion is authorized in Wis. Stat. § 971.08(2):

If a court fails to advise a defendant as required by sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant’s deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant’s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.

The circuit court denied the motion, concluding Valadez had not shown she was “likely” to suffer immigration consequences because she was not “presently the object of a proceeding for deportation, exclusion from admission, or denial of naturalization.” (¶25). The court relied on State v. Negrete, 2012 WI 92, ¶27 n.8, 343 Wis. 2d 1, 819 N.W.2d 749, which requires a defendant in Valadez’s position to show that the federal government has “conveyed its intent” to impose one of the listed consequences and to show a “nexus” between that intent and the challenged conviction.

The court of appeals certified the case to the supreme court as presenting questions primarily about deportation: how far must the federal government have gone toward removal for plea withdrawal to lie? And, if removal proceedings must actually be underway, might that not doom a defendant’s claim under the time limits that were, in the court’s view, “strongly suggest[ed]” in State v. Romero-Georgana, 2014 WI 83, 360 Wis. 2d 522, 849 N.W.2d 668. Per the court of appeals, “[t]his may be a Catch-22 for the defendant who was not warned about immigration consequences in the first place.”

The supreme court, however, resolves the case on the basis of one of the statute’s other listed immigration consequences: exclusion from admission. Valadez shows that, though she is a lawful permanent resident, federal statutes deem those convicted of drug offenses generally inadmissible. The federal government does not seek out such people to inform them of their status or take any action against them; the only way Valadez could be denied admission would be if she were to leave the country and attempt to return. (¶¶32-43). Over the state’s argument that this is too big of an “if” to be “likely,” the court concludes that

[r]equiring Ms. Valadez to leave the country and seek readmission to demonstrate that she is “likely” to be excluded from admission is the equivalent of asking her to demonstrate exclusion from admission to 100% certainty. Wisconsin Stat. § 971.08(2) requires an immigration consequence be “likely,” not “certain.”

(¶46). The court therefore directs that she be permitted to withdraw her plea.

About those “strongly suggested” time limits: the lead opinion finds it unnecessary to discuss them, given the different mechanisms for removal and exclusion. The concurrence/dissent, authored by Justice Ziegler, labors to make the court’s non-decision on time limits clear beyond any doubt (¶¶59, 61, 62, 65), and also stresses that the court’s prior cases on deportation are not modified. (¶54).

The dissent by Justice Prosser does not explicitly disagree with the lead and concurring opinion’s conclusion that Valadez has shown likelihood of immigration consequences; instead it posits that Wis. Stat. § 971.08(2) motions are (or should be) bound by the short time limits of Wis. Stat. Rule 809.30 or governed by Wis. Stat. § 974.06, which requires a defendant to show both custody and a constitutional infirmity in the plea. (¶¶85-99). The concern is that otherwise, non-citizens will be able to “withdraw their pleas to serious crimes whenever they want to and regardless of the circumstances.” (¶108). Of course, this will only (arguably) be true of non-citizens to whom the trial court has failed to read the one-sentence immigration warning despite numerous cases reminding it to do so. Moreover, how many non-citizens would, long after conviction, want to go back to court and litigate plea withdrawal, despite the well-known risks, unless they were in fear of newly-discovered immigration consequences?