Wisconsin court rules for non-citizen years after her plea

In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016).  The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea.

Melisa Valadez became a lawful permanent resident of the United States in 2001, at age 15. At age 19, she was convicted in three cases of drug-related offenses. In all three cases, the Wisconsin state court failed to provide statutory warnings that a plea of guilty or no contest could carry adverse immigration consequences. (The case was decided under Wisconsin Statute 971.08(1)(c), which requires the court to warn about immigration consequences prior to accepting a plea, and so does not implicate the right to counsel as applied in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010)).

After serving jail time and successfully completing probation, Ms. Valadez had no subsequent convictions. In 2013, she filed a motion to withdraw her guilty pleas, arguing that the convictions would likely result in her exclusion from (denial of admission to) the U.S. if she were to leave and then seek to return. The State argued that, because she was not threatened with deportation, she had not demonstrated a likelihood of an adverse consequence, which is a statutory requirement for relief when the court has failed to provide the immigration advisal.

The Wisconsin Supreme Court held that by showing that exclusion was likely under the applicable federal statutes, Ms. Valadez had satisfied the likelihood requirement regarding an adverse impact.  She did not need to leave the U.S. and actually suffer the adverse consequence of exclusion. By contrast, when relying upon a likelihood of deportation as the pertinent adverse consequence, a defendant must allege specific facts to show a causal connection between the conviction in question and the likelihood of a deportation proceeding (a burden difficult to meet if immigration authorities have not detained the defendant or initiated deportation proceedings).

Although the intermediate court of appeals had raised the issue of timeliness of the defendant’s motion, the parties agreed that even if a time limit might be appropriate in other circumstances, Ms. Valadez was entitled to a ruling on the merits of her motion.

This case underscores the importance of potential immigration consequences to non-citizen defendants in criminal cases. In the context of plea negotiations, the defense attorney has a constitutional responsibility to provide accurate information about these consequences, and by statute the court must give the basic notice that a guilty or no contest plea may result in adverse consequences.

Michael Tobin

Michael Tobin is Deputy Public Defender for the State of Wisconsin, where he has been engaged in law reform activities for more than 30 years. He understands how important collateral consequences are to a defense lawyer’s practice, and he has compiled comprehensive on-line practice materials linking consequences to triggering criminal offenses under state law.

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