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Circuit court’s immigration warning didn’t comply with § 971.08(1)(c), and defendant has sufficiently alleged likelihood of deportation

State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, petition for review granted 1/18/2017, reversed, 2017 WI 104; case activity (including briefs)

This decision is important to anyone who litigates claims for plea withdrawal under § 971.08(2) because it helps clarify the law in two ways. First, it provides two examples of a circuit court’s failure to comply with § 971.08(1)(c)’s requirement that the defendant be warned about the immigration consequences of a plea. Second, it explains what a defendant must allege to make a sufficient showing that his or her plea is likely to result in deportation.

A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant of the potential immigration consequences of the plea—namely, that the plea might result in deportation, inadmissibility, or denial of naturalization. The statute is unusual in that it essentially provides a script of the warning the court should give—although slight deviations from the script are okay as long as the judge accurately and completely conveys the substance of the warning. State v. Mursal, 2013 WI App 125, ¶¶14, 16, 20, 351 Wis. 2d 180, 839 N.W.2d 173.

If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is “likely to result” in one of the immigration consequences listed in the statute, then, under § 971.08(2), the defendant gets to withdraw his plea. Plea withdrawal is appropriate even if the state claims the defendant actually knew the immigration consequences. That’s because harmless error principles don’t apply to § 971.08(2). State v. Douangmala, 2002 WI 62, ¶¶3-4 & n.3, 25, 42, 46, 253 Wis. 2d 173, 646 N.W.2d 1.

The judge who took Reyes Fuerte’s pleas deviated in two significant ways from § 971.08(1)(c)’s script, and in doing so it failed to accurately and completely convey the substance of the required warning:

¶18      First, the circuit court failed to use the statutory term “citizen” and, instead, advised Reyes Fuerte that his plea could result in immigration if Reyes Fuerte was not a “resident.” For immigration and deportation purposes, the two terms have very different legal implications.

¶19     United States citizens, obviously, do not face possible deportation or other adverse immigration consequences based on violations of state criminal statutes. The State does not argue otherwise.

¶20     A United States non-citizen “resident,” in contrast, may face such consequences. The parties do not discuss possible definitions of the term “resident,” but it is clear that, for purposes of immigration law, there are both citizen and non-citizen “residents” of the United States. See, e.g., Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008) (referring to a non-United States citizen as having the status of a “lawful permanent resident” of the United States). Significant here, even non-citizen residents who are legally present in the United States are subject to the immigration consequences that Wis. Stat. § 971.08(1)(c) and (2) are concerned with. See, e.g., Carachuri-Rosendo v. Holder, 560 U.S. 563, 566-67 (2010) (applying federal deportation provisions to lawful permanent resident); Garcia-Meza, 516 F.3d at 535-36 (same). Thus, the circuit court’s advisement plainly and incorrectly informed Reyes Fuerte that residents, which would cover non-citizen residents, need not worry about adverse immigration consequences.

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¶22     A second way the circuit court failed to give the required advice was by wholly omitting one of the three immigration consequences listed in the statute, “denial of naturalization.” By contrast, in Mursal we found it significant that the advice “completely explained each of the elements listed in the statute.” See Mursal, 351 Wis. 2d 180, ¶16.

The state conceded that omitting the naturalization consequence was a substantive deviation (¶23), but it argued that doesn’t provide a basis for Reyes Fuerte to withdraw his plea because the consequence he’s concerned about is deportation, not denial of naturalization. Not so, says the court: “As far as we can tell, this does-not-matter-here argument is the sort of harmless error argument barred by the statute and the supreme court’s interpretation of the statute in Douangmala.” (¶23). As it happens, though, the court doesn’t decide the case on the omission of advice about naturalization because the state made no attempt to argue that the circuit court’s use of “resident” instead of “citizen” substantially complied with § 971.08(1)(c), and that deviation is by itself a sufficient basis to find the circuit court failed to comply with the statute. (¶¶21, 23).

Readers should take note that the state is gunning for Douangmala’s holding that harmless error doesn’t apply in cases arising under § 971.08(2), and it seems highly likely this case will be a vehicle for the state to ask the supreme court to review the rule. Why? Because the state’s brief in this case is devoted to arguing why Douangmala should be overruled. The court of appeals doesn’t discuss the substance of the state’s arguments given it has no power to overrule Douangmala. But as the court says, “[w]hether there is any merit to the State’s challenge is for the supreme court to decide.” (¶8 n.3).

Having found the circuit court’s warning to be inadequate, the next question is whether Reyes Fuerte has made a sufficient showing that one of his pleas is likely to result in his deportation. While case law is not entirely clear about how “definite” or “imminent” deportation must be for a defendant to show that is a “likely” result of a plea, the court finds guidance in State v. Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749. The court reads Negrete to require a defendant to “make particularized allegations showing a ‘causal nexus’ between the defendant’s plea and likely deportation.” (¶27). If the defendant makes such allegations, he’s entitled to an evidentiary hearing to establish the facts that prove that causal nexus. (¶27).

Reyes Fuerte has met this pleading standard. As explained in more factual and legal detail in the decision (¶30), his motion alleges that his plea to one of the charges affected a deportation proceeding already pending against him because, but for that plea, he would have had a viable claim for cancellation of deportation in that proceeding. In rejecting the state’s argument that Reyes Fuerte’s motion is insufficient because of a lack of “proof” the court provides significant clarification regarding what motions under § 971.08(2) should allege:

¶33     The State appears to argue that Reyes Fuerte’s allegations were insufficient because, in the State’s words, Reyes Fuerte failed to provide “proof” beyond a “general and conclusory cite to the federal statute ‘listing the elements’ for cancellation of removal.” We disagree. Reyes Fuerte’s citation to the statute—along with case law and with specific facts about Reyes Fuerte’s history and family that the State ignores—appears to track one of the alternatives that the Negrete court suggested would meet the initial pleading burden. See id., ¶27 n.8 (stating, in part: “[I]f a defendant chooses to establish that the crime to which the defendant pleaded is one for which the defendant would have been subject to potentially adverse immigration consequences under controlling federal law, the defendant should cite the federal law upon which reliance is placed.”).

¶34      We acknowledge that other alternatives listed by the Negrete court refer to communications from federal actors connecting the defendant’s plea to an adverse immigration consequence. See id., ¶¶27, 37. However, we do not read Negrete as saying that such additional allegations regarding such communications are required in all cases.

¶35     Notably, unlike the deficient allegations examined by the Negrete court, the allegations here do not “require the circuit court or a reviewing court to speculate about the factual basis for the requisite nexus.” See id., ¶37. Reyes Fuerte alleged that, but for his plea, he would have been eligible for a cancellation defense in his ongoing deportation proceedings, and he provided factual allegations and legal citations to support that allegation.

The court also rejects the state’s notion that the plea must result in the commencement or institution of deportation proceedings rather than some sort of effect on an ongoing proceeding. Nothing in the text of § 971.08(2) suggests that limitation, as the statute simply refers to whether a plea “is likely to result in the defendant’s deportation” or other immigration consequence. (¶¶36-38).

While the court finds that Reyes Fuerte’s alleges a sufficient “nexus” between his plea and deportation, it doesn’t vacate his pleas; instead, it remands for an evidentiary hearing to give Reyes Fuerte the opportunity to prove the factual predicates to his claim that the plea to one of the crimes will likely result in deportation (namely, that he’d have satisfied the factual standards for cancellation). (¶¶1, 41-42). Had the state stipulated to those facts, or had the circuit court taken evidence on those allegations before denying the motion, remand would apparently be unnecessary. (¶¶4, 42). Also, in a case in which the defendant is alleging his plea resulted in the commencement of deportation proceedings, a communication from federal actors connecting the plea to the initiation of deportation proceedings would seemingly be sufficient, too. (¶34 (citing Negrete, 343 Wis. 2d 1, ¶¶27, 37)).

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