During the guilty plea colloquy for a defendant who was a Mexican national, the district judge advised him that deportation would be a likely result of his guilty plea, and the defendant said he understood. In a later habeas corpus proceeding, the defendant unsuccessfully tried to withdraw his plea, alleging that his attorney had not properly advised him about the immigration consequences of his guilty plea.
The State argued that the trial judge’s advice that deportation was likely, combined with the defendant’s statement that he understood what the judge had told him, “cured” any inadequate advice the defendant might have received from his attorney.
In State v. Favela (Aug. 8, 2013), the Court of Appeals disagreed. As Judge Sutin’s opinion explains, a criminal defense attorney’s advice about the immigration consequences of a guilty plea should not be limited to simply informing his or her client of the stark fact that deportation is the likely result of a guilty plea to a certain offense.
Rather, the role of defense counsel is to advise the client of how to evaluate and respond to the potential immigration consequences. As Judge Sutin points out, “a court’s warning or advisement to a defendant regarding possible immigration consequences of accepting a plea is never, by itself, sufficient to cure the prejudice that results from ineffective assistance of counsel” because defense counsel should be looking for ways to use that information to the client’s advantage.
For example, if a defendant is charged with several crimes, some that involve deportation and some that do not, the lawyer can try to negotiate a guilty plea to the offenses that do not involve a risk of deportation. A defendant may even be willing to plead guilty to a charge resulting in a longer sentence if it increases his or her chance of remaining in the United States. The responsibility of competently counseling a client, and of creatively using the lawyer’s professional knowledge to the client’s advantage, simply cannot be replaced by a judge’s questioning at a hearing.
While this decision directly concerns criminal defense lawyers, it serves as a sobering reminder to all New Mexico lawyers that our role is not limited to providing factual information about the law to our clients (as important as that is), but must include understanding our clients’ needs, and using our knowledge of the law to come up with solutions that will best serve those needs.