Issue presented (from certification):
How definite or imminent must deportation be in order for it to be “likely,” such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences at the plea colloquy? If, in order to withdraw the plea, the defendant must show that deportation proceedings are underway, how does this standard fit in with the time limits for a motion to withdraw the plea?
It is undisputed that the circuit court failed to give Valadez the §971.08 warning that her plea to possession of THC and drug paraphernalia might have adverse immigration consequences. However, when she moved to withdraw her guilty plea on that basis, the State argued that she failed to show that she is now subject to actual immigration proceedings. Siding with the State, circuit court denied Valadez’s motion.
Section 971.08(2) required Valadez to show that her plea “was likely to result in the defendant’s deportation, exclusion from admission to this country or denial of naturalization.” The court of appeals asks:
[I]s it enough for the defendant to show that he or she is automatically subject to deportation under specifically identified federal law? If so, do any applicable exclusions or possibilities of discretionary waiver change the analysis? Or, must the federal government affirmatively act to “manifest its intent to institute one of the immigration consequences listed in § 971.08(2)?” Negrete, 343 Wis. 2d 1, ¶27. If that is the case, what action by the federal government is enough to trigger the right to withdraw the plea? Does “written notification that … imports adverse immigration consequences” only mean advisement that deportation proceedings are actually underway, or is a letter stating that the government is determining deportation status enough? May a defendant merely state that he or she has spoken with a federal agent “advising that adverse immigration consequences were likely,” as suggested by Negrete, 343 Wis. 2d 1, ¶27, or does such testimony fall short of the mark? Certification at 6.
The court of appeals notes that SCOW just granted review in two cases that address ineffective assistance of counsel claims based on the failure to advise a client of immigration consequences. See posts State v. Ortiz-Mondragon and State v. Shata here. Because these cases concern advice given prior to conviction, SCOW’s analysis of them may inform what it means for immigration consequences to be “likely.” Certification at 7.
The court of appeals also expresses concern about how State v. Romero-Georgana, which SCOW decided last term, affects this issue. In that case, the majority strongly suggested that motions for plea withdrawal based upon a failure to warn a defendant about the immigration consequences of pleading guilty should be subjected to a time limit. More here re Romero-Georgano. So the court of appeals queries:
How would such a time limit fit in with the possible need to await actual deportation proceedings before moving to withdraw the plea? If, after a certain point, the motion must be brought as one for ineffective assistance of postconviction counsel, how could the defendant have a colorable claim when the plea withdrawal claim was not ripe postconviction? Is a Wis. Stat. § 971.08(2) motion doomed as premature when there are no deportation proceedings underway at the time of conviction, doomed as an ineffective assistance of postconviction counsel claim when there was no ripe claim to pursue, yet doomed as too late when a procedural time limit has passed prior to immigration proceedings being initiated? This may be a Catch-22 for the defendant who was not warned about immigration consequences in the first place. Certification at 11.