State v. Gallegos-Delgado
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _______________ 3 Filing Date: December 7, 2016 4 NO. 34,321 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 MANUEL GALLEGOS-DELGADO, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Stan Whitaker, District Judge 12 Hector H. Balderas, Attorney General 13 Maris Veidemanis, Assistant Attorney General 14 Santa Fe, NM 15 for Appellee 16 L. Helen Bennett, P.C. 17 L. Helen Bennett 18 Albuquerque, NM 19 for Appellant 1 OPINION 2 VANZI, Judge. 3 {1} Defendant Manuel Gallegos-Delgado is an undocumented immigrant who pled 4 guilty to drug possession and driving while under the influence of alcohol in 5 exchange for the State agreeing not to oppose a conditional discharge of the drug 6 charge. Federal removal proceedings were then initiated against Defendant, pursuant 7 to the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101-1537 (2012), and he 8 was permanently deported. Defendant subsequently filed a motion to withdraw his 9 guilty plea, arguing that his attorney had only advised him that a possible 10 consequence of pleading guilty would be deportation, not that he would be barred re11 entry into the United States forever. The district court’s denial of Defendant’s motion 12 to withdraw his plea is the subject of this appeal. The question presented to this Court 13 is whether Defendant’s attorney rendered deficient representation by failing to advise 14 him of the specific immigration consequences that would follow as a result of his 15 guilty plea, and if so, whether Defendant was prejudiced by her deficient 16 performance. We answer these questions in the affirmative and, accordingly, reverse 17 and remand. 1 BACKGROUND 2 {2} On May 30, 2013, Defendant pleaded guilty to possession of cocaine and 3 driving while under the influence of alcohol in exchange for dismissal of other 4 charges against him and a probated sentence. Part of the plea agreement was that the 5 State would not oppose a conditional discharge of the possession charge. After 6 pleading guilty, Defendant received a conditional discharge of the possession charge, 7 was placed on supervised probation, and received a deferred sentence. At the plea and 8 sentencing hearing, during the plea colloquy, the district court judge inquired as to 9 whether there were any immigration issues, and Defendant’s attorney said she 10 “explained [the] immigration consequences for [Defendant and the] possibility of 11 deportation” and that he had consulted with an immigration attorney. The judge then 12 specifically asked Defendant if his attorney had explained the immigration 13 consequences of entering the guilty plea and that he may be deported. Defendant said 14 that she had and that he nevertheless wanted to go forward with the plea. Defendant 15 additionally stated that he had an opportunity to discuss the terms and conditions of 16 the plea agreement with a separate immigration attorney. The judge explained to 17 Defendant that if he successfully completed the terms of his probation, the possession 18 charge would be discharged and he would no longer have it on his record. Of note, 19 a conditional discharge operates like a conviction under federal immigration law, see 2 1 8 U.S.C. § 1101(48)(A), unlike in New Mexico, where a conditional discharge is not 2 an adjudication of guilt. NMSA 1978, § 31-20-13(A) (1994). 3 {3} Defendant subsequently violated the terms of his probation, and the State 4 moved to revoke Defendant’s probation. The district court appears to have retracted 5 the conditional discharge for the possession charge, and an amended judgment and 6 sentence was entered on November 20, 2013. 7 {4} Because Defendant violated New Mexico law, he was subject to deportation 8 under the INA. See 8 U.S.C. §§ 1182(a)(2)(A), 1226(a)(1), 1227(a)(1)(B). On 9 November 25, 2013, Defendant was taken into custody by the Department of 10 Homeland Security (DHS), and removal proceedings were initiated against him. An 11 Immigration Judge (IJ) determined that Defendant was ineligible for cancellation of 12 removal and adjustment of status under the INA because of his possession conviction. 13 The IJ also denied Defendant’s request for voluntary removal because Defendant’s 14 controlled substance conviction prohibited Defendant from ever lawfully returning 15 to the United States. 16 {5} Defendant then filed a motion for relief from judgment and to withdraw his 17 guilty plea. In the motion, Defendant alleged that he was not advised that he would 18 be deported as a result of his guilty plea and stated that he would not have entered 19 into the plea agreement if he had known the specific immigration consequences of his 3 1 plea. The district court held a hearing on the motion on October 20, 2014. At the 2 hearing, Defendant testified that he had already been deported and he was currently 3 in the custody of the United States Immigrations and Customs Enforcement (ICE). 4 Defendant further testified that he would not have entered the guilty plea had he 5 known all the immigration consequences. On cross-examination, Defendant admitted 6 that his attorney told him he “would” be deported, despite asserting in an affidavit she 7 said he “might” be deported. On re-direct, Defendant confirmed that he knew he was 8 going to be deported but said he did not know about the other immigration 9 consequences that would result from the plea, such as being forbidden from ever 10 returning to the United States. During his testimony, Defendant clarified that he never 11 had actually hired an immigration attorney; he had only spoken to one briefly on the 12 phone, and she had not discussed the specific consequences that might emerge from 13 pleading guilty because she had not reviewed his case. 14 {6} Defendant’s trial attorney, who had since withdrawn as Defendant’s counsel, 15 also testified at the hearing, and she said that the evidence against Defendant was 16 “strong” and he was “adamant” in taking the plea. Furthermore, she testified that she 17 specifically told Defendant that the conditional discharge “would not have the same 18 effect with immigration” as it would with other clients. However, she could not 19 remember the exact language she used and whether she told Defendant “he would 4 1 most definitely, to a certainty, be deported” or whether he “can be deported.” The 2 following is additional relevant testimony from Defendant’s trial attorney, Courtney 3 Aronowsky, at the hearing: 4 5 6 7 [Prosecutor:] Ms. Aronowsky, you’re aware that since 2004, you are required to advise your clients of the specific immigration consequences of each charge to which they’re pleading; isn’t that correct? 8 [Ms. Aronowsky:] Yes. 9 [Prosecutor:] 10 11 But you did not do that in this case? [Ms. Aronowsky:] Yes, right. .... 12 13 [Mr. Shattuck:] Were you aware that he would be denied . . . bond while he was going through a removal proceeding? 14 [Ms. Aronowsky:] No. 15 [Mr. Shattuck:] 16 [Ms. Aronowsky:] No. 17 18 [Mr. Shattuck:] Were you aware that he would be denied the right for voluntary removal and to return to the country as result of this plea? 19 [Ms. Aronowsky:] No. 20 21 [Mr. Shattuck:] Were you aware that he would be denied any attempts to adjust his status as a result of entering this plea? 22 [Ms. Aronowsky:] No. As result of this plea? 5 1 2 [Mr. Shattuck:] And were you aware that he would never be able to reapply for reentry into this country? 3 [Ms. Aronowsky:] No. 4 5 [Mr. Shattuck:] And since you were not aware of those issues, were you able to discuss them with him? 6 [Ms. Aronowsky:] No. 7 {7} Ultimately, the district court denied Defendant’s motion, finding that 8 Defendant had been advised of the consequences of entering the guilty plea and that 9 there was no evidence Defendant had wanted to go to trial. The district court also 10 found that “[D]efendant’s trial counsel was not deficient in her representation[,]” and 11 that the “record fails to provide any proof that [D]efendant was either leaning toward 12 trial by any pre-conviction statements or actions, or that it was a viable option he was 13 considering.” This appeal followed. 14 DISCUSSION 15 Jurisdiction 16 {8} We begin by addressing whether this Court has jurisdiction in the present 17 matter. We conduct our review of the jurisdictional issue de novo. State v. Gutierrez, 18 2016-NMCA-077, ¶ 17, 380 P.3d 872. Defendant requested appellate relief under 19 Rule 1-060(B)(4) NMRA, which is the proper procedural mechanism for a person no 20 longer in state custody to appeal an allegedly void judgment. See State v. Tran, 20096 1 NMCA-010, ¶ 16, 145 N.M. 487, 200 P.3d 537. We have previously held that this 2 Court has jurisdiction when a defendant wishes to “challenge his underlying criminal 3 conviction when in the custody of ICE” if the Defendant has filed a Rule 1-060(B)(4) 4 motion. State v. Favela, 2013-NMCA-102, ¶ 11, 311 P.3d 1213, aff’d, 2015-NMSC5 005, 343 P.3d 178 (Favela II). Although a conditional discharge is not a conviction 6 under New Mexico law, see § 31-20-13(A); State v. Harris, 2013-NMCA-031, ¶ 6, 7 297 P.3d 374, it has that effect under federal immigration law when an alien has pled 8 guilty and a judge has ordered some type of punishment, even if a formal adjudication 9 of guilt has been withheld. 8 U.S.C. § 1101(48)(A). 10 {9} Defendant was in ICE custody at the time he filed this appeal and alleges that 11 the judgment entered against him is void. Because Defendant’s guilty plea to the 12 possession charge operated as a conviction under federal law and was thus the basis 13 for the IJ finding that he was ineligible for cancellation of removal, adjustment of 14 status, voluntary removal, and that Defendant could never lawfully return to the 15 United States, we conclude that this Court has jurisdiction pursuant to Rule 1-060(B). 16 The Motion to Withdraw the Guilty Plea 17 {10} Defendant claims that the district court abused its discretion in denying his 18 motion to withdraw his guilty plea because his attorney rendered deficient 19 representation by not advising him of the specific immigration consequences and, as 7 1 a result, he was prejudiced. A district court’s denial of a defendant’s motion to 2 withdraw a guilty plea is reviewed for abuse of discretion. State v. Tejeiro, 20153 NMCA-029, ¶ 4, 345 P.3d 1074, cert. denied, 2015-NMCERT-005, 367 P.3d 440. An 4 abuse of discretion happens “when a district court’s ruling is clearly erroneous or 5 based on a misunderstanding of the law[.]” Id. (internal quotation marks and citation 6 omitted). The district court also abuses its discretion“when the undisputed facts 7 establish that the plea was not knowingly and voluntarily given.” State v. Paredez, 8 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and 9 citation omitted). 10 {11} Under the Sixth Amendment of the United States Constitution, defendants in 11 criminal cases have the right to reasonably effective assistance of counsel. Strickland 12 v. Washington, 466 U.S. 668, 686-88 (1984). This right extends to plea negotiations. 13 Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032; see Hill 14 v. Lockhart, 474 U.S. 52, 56 (1985). In order to be valid, a guilty plea must be 15 voluntary and intelligent. State v. Garcia, 1996-NMSC-013, ¶ 9, 121 N.M. 544, 915 16 P.2d 300. If a defendant pleads guilty based on the advice of his or her attorney, 17 whether the plea was voluntary and intelligent depends on whether the attorney’s 18 assistance in counseling the guilty plea was ineffective. Tejeiro, 2015-NMCA-029, 19 ¶ 5. Because a motion to withdraw a guilty plea connected to an allegation of 8 1 ineffective assistance of counsel is a mixed question of law and fact, we review 2 Defendant’s claim de novo. See id.; see also Gutierrez, 2016-NMCA-077, ¶ 33. 3 {12} In Strickland, the United States Supreme Court adopted a two-part test 4 applicable to ineffective assistance of counsel claims. Under the test, a defendant 5 seeking to make a claim for ineffective assistance of counsel has the burden of 6 demonstrating: (1) “counsel’s performance was deficient[,]” and (2) “the deficient 7 performance prejudiced the defense.” 466 U.S. at 687; State v. Hester, 1999-NMSC8 020, ¶ 9, 127 N.M. 218, 979 P.2d 729. To prevail on an ineffective assistance of 9 counsel claim, both prongs of the Strickland test must be met. Tejeiro, 2015-NMCA10 029, ¶ 6. 11 1. Deficient Performance 12 With respect to guilty pleas that have deportation and other immigration {13} 13 consequences, our Supreme Court held in Paredez that “an attorney’s non-advice to 14 an alien defendant on the immigration consequences of a guilty plea would . . . be 15 deficient performance.” 2004-NMSC-036, ¶ 16. The Paredez Court further held: 16 17 18 19 20 21 22 If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain. Proper advice will allow the defendant to make a knowing and voluntary decision to plead guilty. . . . An attorney’s failure to provide the required advice regarding immigration consequences will be ineffective assistance of counsel if the defendant suffers prejudice by the attorney’s omission. 9 1 Id. ¶ 19 (emphases added). 2 {14} Since Paredez, this Court has interpreted the law as “requir[ing] criminal 3 defense counsel . . . to read and interpret federal immigration law and specifically 4 advise the defendant whether a guilty plea will result in almost certain deportation.” 5 State v. Carlos, 2006-NMCA-141, ¶ 14, 140 N.M. 688, 147 P.3d 897. It is not 6 sufficient to advise a client that he or she will be deported, but rather, the criminal 7 defense attorney must inform the client with specificity what the immigration 8 consequences might be. See Tejeiro, 2015-NMCA-029, ¶ 7 (“An attorney who failed 9 to meet his affirmative burden in providing his client with information about 10 deportation risks would thus necessarily satisfy the first prong of the Strickland 11 analysis.”). 12 {15} In the instant case, the record is not illuminating on the question of whether 13 Defendant’s trial attorney informed him that it was a virtual certainty he would be 14 deported. Defendant alleges that his attorney only told him he “could” be deported. 15 But during the hearing on the motion to withdraw his guilty plea, Defendant testified 16 both that his attorney told him he “would” be deported and that he “possibly” would 17 be deported. To complicate matters, Defendant’s trial attorney testified that she could 18 not recall the precise language used, i.e., whether she said he would definitely be 19 deported or whether he could be deported. Because of the ambiguous evidence, we 10 1 are unable to conclude whether Defendant’s attorney properly advised him it was a 2 virtual certainty he would be deported. However, that is not the end of our inquiry. 3 {16} Paredez not only requires defense attorneys to advise their clients if they will 4 be deported but also demands that attorneys “conduct an individualized analysis of 5 the apparent immigration consequences for [a d]efendant.” See Carlos, 2006-NMCA6 141, ¶ 15. Here, the specific immigration consequences confronting Defendant, in 7 addition to the risk of deportation, are substantial. For example, as a general rule, the 8 Attorney General “may cancel removal in the case of an alien who is inadmissible or 9 deportable from the United States if the alien . . . has not been convicted of any 10 aggravated felony.” 8 U.S.C. § 1229b(a)(3). However, Defendant’s controlled 11 substance conviction limits the application of this section. See United States v. 12 Valenzuela-Escalante, 130 F.3d 944, 945-46 (10th Cir. 1997) (holding that 13 possession of a controlled substance is an “aggravated felony” as defined by 18 14 U.S.C. § 924(c)(2) and 8 U.S.C. § 1101(43)(B)). Similarly, the Attorney General’s 15 ability to adjust Defendant’s residency status under 8 U.S.C. § 1255a(b)(1)(C)(ii) is 16 negated by a felony conviction. See id. (“The Attorney General shall adjust the status 17 of any alien provided lawful temporary resident status under subsection (a) of this 18 section to that of an alien lawfully admitted for permanent residence if the alien . . . 11 1 establish[es] that he . . . has not been convicted of any felony . . . in the United 2 States.”). 3 {17} Furthermore, Defendant would generally be allowed to voluntarily depart the 4 United States at his own expense rather than being subject to removal proceedings. 5 8 U.S.C. § 1229c(a)(1). However, Defendant’s controlled substance conviction 6 renders him “deportable” under Section 1229c(a)(1), thus limiting this option. See id. 7 (limiting the option to self-deport to aliens “not deportable under [8 U.S.C. S]ection 8 1227(a)(4)(B)”). 9 {18} Most significantly, Defendant’s controlled substance conviction results in a 10 permanent bar to reentry to the United States. 8 U.S.C. § 1182(a) provides, in 11 pertinent part, that “aliens who are inadmissible . . . are ineligible to receive visas and 12 ineligible to be admitted to the United States. 8 U.S.C. § 1182(a)(2)(A)(i)(II) provides 13 that an alien “convicted of . . . a violation of . . . any law or regulation of a State . . 14 . relating to a controlled substance . . . is inadmissible.” See Berrum-Garcia v. 15 Comfort, 390 F.3d 1158, 1165 (10th Cir. 2004) (stating that “aliens [that] are deemed 16 ‘inadmissible’ [are] ineligible even to apply for a visa that would permit them to 17 legally enter the United States”); People v. Am. Sur. Ins. Co., 92 Cal. Rptr. 2d 216, 18 219 (Cal. Ct. App. 2000) (applying 8 U.S.C. § 1182(a)(2) and noting that “review of 19 present federal immigration law indicates that the statutory bars to legal reentry are 12 1 nearly, if not flatly, impregnable for a convicted drug trafficker”). As discussed 2 above, the conditional discharge of Defendant’s drug possession charge operates as 3 a conviction under federal law. See 8 U.S.C. § 1101(48)(A)(i) (“The term ‘conviction’ 4 means, with respect to an alien, a formal judgment of guilt of the alien entered by a 5 court or, if adjudication of guilt has been withheld, where . . . the alien has entered a 6 plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding 7 of guilt[.]”). Defendant’s attorney acknowledged that she did not advise Defendant 8 of these additional immigration consequences. Indeed, Defendant testified that at the 9 time of his guilty plea he was not aware that deportation would be permanent or that 10 he would suffer other severe immigration consequences. Therefore, Defendant’s 11 guilty plea was not voluntary and intelligent as required by the Sixth Amendment. See 12 Garcia, 1996-NMSC-013, ¶ 9; see also Favela II, 2015-NMSC-005, ¶ 14 (“It is 13 imperative that every defendant entering into a plea agreement which could result in 14 immigration consequences possesses a clear understanding of those immigration 15 consequences.”). 16 {19} In addition, in its order denying Defendant’s motion, the district court found 17 that “[D]efendant testified that his trial attorney advised him of the specific 18 consequence of deportation.” As previously discussed, however, Defendant’s attorney 19 was required to advise him, not only of the consequence of deportation, but also of 13 1 other immigration ramifications. See Carlos, 2006-NMCA-141, ¶ 15 (“We read 2 Paredez to require at a minimum that the attorney advise the defendant of the specific 3 federal statutes which apply to the specific charges contained in the proposed plea 4 agreement and of consequences, as shown in the statutes, that will flow from a plea 5 of guilty.”). But Defendant’s attorney testified that she was not aware of the full 6 breadth of immigration consequences Defendant faced. As such, she was unable to 7 give Defendant advice regarding the relevant federal statutes and such non-advice 8 constituted deficient performance. See Paredez, 2004-NMSC-036, ¶ 16; see also 9 Carlos, 2006-NMCA-141, ¶ 16 (explaining that a resident alien’s defense attorney 10 “should have analyzed and discussed with [the d]efendant the federal statute relating 11 to cancellation of removal” and other immigration consequences beyond the issue of 12 deportation). Defendant has thus met the first prong of the ineffective assistance of 13 counsel test. 14 2. Prejudice 15 The second prong of the Strickland test requires Defendant to demonstrate that {20} 16 his “counsel’s constitutionally ineffective performance affected the outcome of the 17 plea process.” Paredez, 2004-NMSC-036, ¶ 20 (internal quotation marks and citation 18 omitted). In order to establish such prejudice, the defendant must show that there is 19 a “reasonable probability” he would not have taken the plea had the attorney’s 14 1 representation regarding the specific immigration consequences been constitutionally 2 adequate. Id. (internal quotation marks and citation omitted). “Our recent 3 jurisprudence adopts ‘a broad approach to how a defendant can demonstrate 4 prejudice.’ ” Tejeiro, 2015-NMCA-029, ¶ 14 (quoting Favela, 2013-NMCA-102, 5 ¶ 20). The approach used by this Court is not mechanical, but rather, is determined 6 by the facts of each case. Favela, 2013-NMCA-102, ¶ 19. 7 {21} To show that a defendant would have rejected a plea deal had his attorney 8 advised him of the specific immigration consequences beyond deportation, a 9 defendant must show that his decision to decline the plea bargain “would have been 10 rational under the circumstances.” Tejeiro, 2015-NMCA-029, ¶ 14 (internal quotation 11 marks and citation omitted). Generally, however, prejudice may not be shown by the 12 defendant’s self-serving statements alone and requires some corroborating evidence. 13 Id. ¶ 15. Corroborating evidence may include: (1) the defendant’s pre-conviction 14 statements or actions that indicate the defendant preferred to go to trial, Patterson, 15 2001-NMSC-013, ¶ 30; (2) the strength of the State’s case, id. ¶ 31; (3) evidence of 16 a defendant’s connections to the United States, see Carlos, 2006-NMCA-141, ¶ 21; 17 and (4) the defendant’s post-conviction behavior that demonstrates he probably 18 would not have pled guilty had he received competent advice, see Tejeiro, 201519 NMCA-029, ¶¶ 15, 28-30. However, these factors are not exclusive. Id. ¶ 15 (“Our 15 1 courts have placed no limit on the types of relevant evidence a defendant may provide 2 to demonstrate that he would have rejected the plea if given appropriate advice.”). 3 {22} In denying Defendant’s motion to withdraw his guilty plea, the district court 4 found that there was no pre-conviction evidence that demonstrated Defendant wanted 5 to proceed to trial. To the contrary, however, Defendant’s pre-conviction efforts to 6 engage an immigration attorney demonstrated Defendant’s intent to avoid 7 immigration consequences. Moreover, upon the advice of the immigration attorney, 8 Defendant got married specifically in an attempt to avoid deportation. Had Defendant 9 been properly advised, therefore, there is a “reasonable probability” he would have 10 rejected the plea deal, see Paredez, 2004-NMSC-036, ¶ 20 (internal quotation marks 11 and citation omitted), as evidenced by his pre-conviction actions that show he was 12 concerned about the immigration consequences of his case and actively took steps 13 aimed at reducing the consequences. See Tejeiro, 2015-NMCA-029, ¶ 27 (stating that 14 a defendant’s pre-conviction efforts to make the district court aware of his 15 immigration situation strongly supported the proposition that the defendant would 16 have rejected the plea deal if his counsel’s representation had been constitutionally 17 adequate). 18 {23} Although the strength of the State’s case appears to have been “strong,” the 19 district court did not consider the harshness of the consequences Defendant was 16 1 confronted with as a result of his guilty plea, see Paredez, 2004-NMSC-036, ¶ 22, 2 which likely would have informed Defendant’s decision to proceed to trial had he 3 known the full scope of immigration ramifications. The district court placed particular 4 emphasis on the fact that Defendant had consulted an immigration attorney who had 5 advised him not to plead guilty and he nevertheless decided to take the plea deal, 6 presumably because of the strength of the State’s case against him. Defendant, 7 however, testified that he had not actually hired the immigration attorney and that she 8 did not know the specific circumstances of his case. More importantly, Defendant 9 very well may have made a strategic decision to go against the non-individualized 10 advice of the immigration attorney in order to avoid being subjected to both 11 incarceration and deportation. See id. (“It is conceivable that a non-citizen might opt 12 to plead guilty and accept deportation to avoid serving a prison sentence, rather than 13 face the possibility of both incarceration and deportation.”). But had Defendant’s 14 attorney properly advised him of the severe and specific immigration consequences 15 beyond deportation, it “would have been rational under the circumstances” for 16 Defendant to reject the plea deal so that he could have an opportunity to be acquitted 17 and, therefore, an opportunity to avoid the harsh immigration consequences that 18 awaited him. See Tejeiro, 2015-NMCA-029, ¶ 14 (internal quotation marks and 19 citation omitted). 17 1 {24} With respect to the evidence of Defendant’s connections to the United States, 2 Defendant has a wife and young child here. The record also indicates that Defendant 3 alleges that he came to the United States in 1998 as a child and has lived here 4 continuously since then. Defendant’s connections to the United States and the fact 5 that he has lived here his entire adult life could have been deciding factors in his 6 decision to plead guilty given he was unaware of the more severe immigration 7 consequences he faced. See Carlos, 2006-NMCA-141, ¶ 21. Such evidence of 8 attachment to this country may further corroborate Defendant’s claims. See Tejeiro, 9 2015-NMCA-029, ¶ 24 (explaining that where a defendant had lived with his family 10 in the United States for over a decade, such connection to this country provided 11 corroborating evidence that the defendant would not have accepted a plea deal had 12 he known the immigration consequences). 13 {25} Finally, we note that the district court did not consider Defendant’s post- 14 conviction behavior, which suggests that Defendant would not have taken the plea 15 deal had he fully known the immigration consequences he faced. Our jurisprudence 16 recognizes that a defendant’s post-conviction behavior may be relevant in the 17 prejudice analysis. Id. ¶ 28. “In Paredez, our Supreme Court held that the speed of a 18 defendant’s post-conviction reaction upon discovering the adverse immigration 19 consequences of his guilty plea could be considered when weighing the reasonable 18 1 probability that he would have acted differently with competent advice.” Tejeiro, 2 2015-NMCA-029, ¶ 28. Here, Defendant’s appeal to the Board of Immigration 3 Appeals was remanded on May 27, 2014. Two days later Defendant signed an 4 affidavit stating, “[H]ad [I] know[n] that I would surely face immigration 5 consequences and be stripped of any rights to contest deportation [or] removal, I 6 would not have entered into the [plea] agreement and would not have [pled] guilty.” 7 Less than a month later, on June 24, 2014, Defendant filed his motion for relief from 8 judgement and to withdraw his guilty plea with the district court. Defendant’s post9 conviction actions, although not conclusive, see id. ¶ 29, strongly indicate that 10 Defendant would have rejected the plea deal if his attorney had not provided deficient 11 representation. Indeed, Defendant’s continued effort to fight the immigration 12 consequences, including this very appeal, further supports the conclusion that 13 Defendant was prejudiced. 14 {26} In sum, we hold that Defendant’s attorney rendered deficient performance by 15 not informing Defendant of the specific immigration consequences, beyond 16 deportation, that would arise from his guilty plea. We further hold that the 17 constitutionally inadequate representation prejudiced Defendant because he would 18 not have taken the plea deal had he known the full scope of severe immigration 19 consequences he faced as a result of pleading guilty. 19 1 CONCLUSION 2 {27} For the foregoing reasons, we reverse the district court’s denial of Defendant’s 3 motion to set aside his guilty plea and remand for further proceedings consistent with 4 this opinion. 5 {28} IT IS SO ORDERED. 6 7 __________________________________ LINDA M. VANZI, Judge 8 WE CONCUR: 9 _________________________________ 10 JAMES J. WECHSLER, Judge 11 _________________________________ 12 J. MILES HANISEE, Judge 20
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