National Immigration Project Victory before NM Supreme Court

       This last year I had the privilege of representing the National Immigration Project of the National Lawyers Guild, as well as the New Mexico Criminal Defense Lawyers Association, and the New Mexico Civil Liberties Union (the litigation arm of the ACLU of New Mexico) as amicus curiae in the New Mexico Supreme Court.  We filed  a brief and did the majority of the oral argument before the Court in State v. Paredez, and I will send the opinion in a subsequent e-mail. 
    In that case, State v. Paredez, 2004 NMSC 36; 101 P.3d 799; 2004 N.M. LEXIS 495 (2004), the New Mexico Supreme Court unanimously held that a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status."
    The court "address[ed] the role of criminal defense attorneys in informing their clients of the immigration consequences of a guilty plea", and held that both affirmatively wrong advice and "non-advice" are ineffective assistance of counsel.
    "We hold that criminal defense attorneys are obligated to determine the immigration status of their clients.  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.  Furthermore, requiring the attorney to give such advice is consistent with the spirit of Rule 5-303(E)(5), which prohibits the district court from accepting a guilty plea without first determining that the defendant has an understanding of the immigration consequences of the plea.  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."
    The opinion, by Justice Minzner, also suggests a re-draft of the rule with respect to the trial judge's duties in accepting a plea.
    It was good for the immigration bar, the criminal defense bar, and the premier civil liberties group in the state to unite and present one front for what the law on this important topic should be, and the decision represents a great leap forward for thousands of people for years to come.
    Tova Indritz