Deport or court? Defendants seek to take back criminal pleas based on bad immigration advice

By Jefferson Robbins
World staff writer
Tuesday, November 27, 2012

WENATCHEE — Three men in three criminal cases stood before a judge and pleaded guilt — and later sought to recant, saying their lawyers never told them they could be ejected from the country.

With recent Washington Supreme Court and U.S. Supreme Court decisions on their side, all three petitioned Chelan County Superior Court to vacate their pleas and re-try their cases, saying their defense attorneys didn’t properly inform them that their immigration visas were at risk.

One of them, so far, has succeeded. On Nov. 15 Flavio Ramirez Cruz, 28, overturned the guilty plea he entered to fourth-degree domestic violence assault in 2010. Ramirez’s former lawyer admitted when he advised his client to plead, “he had no idea of the effect this conviction could have on the defendant’s immigration status.”

Two recent court decision have bound state criminal defense law and federal immigration law closer together, said Ann Benson, supervising attorney with the Washington Defender Association Immigration Project. In March 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that attorneys must notify their clients of the immigration consequences of a guilty plea. Immigrants convicted or pleading to certain felonies or “crimes of moral turpitude” — including theft, firearms offenses, drug crimes and domestic violence — can lose any visa and be deported from the United States.

“Prior to the Supreme Court’s decision in Padilla, many states, including Washington, said addressing immigration consequences is outside the scope of what a defense attorney’s required to do,” said Benson, whose program has offered immigration-law resources for defense attorneys since 1999.

One year after Padilla, a Washington Supreme Court ruling built on its precedent. Valentin Sandoval had pleaded guilty in Grant County Superior Court to third-degree rape on the advice of his attorney, Robert E. Schiffner, who assured him he’d have time to secure an immigration lawyer before any deportation proceeding began.

Instead, U.S. Customs and Border Protection immediately began a review of his permanent resident status. In March 2011 the state Supreme Court ruled that Schiffner’s advice failed to meet the Padilla standard, and Sandoval would not have entered his plea had he known the immigration consequences.

“People often plead based on incorrect advice or incomplete advice with regard to a number of factors, including immigration,” said Benson, who filed a brief with the Supreme Court arguing in Sandoval’s favor.

Flavio Ramirez Cruz, a George man who was accused of assaulting his girlfriend at her Wenatchee home in 2010, holds a type-V visa, assigned to children and spouses of permanent residents. After pleading guilty on advice of his attorney, Douglas Anderson of Ephrata, he was sentenced to the two months he’d already served in jail.

Later, Ramirez learned his plea made him subject to automatic deportation. In court Nov. 15 before Judge T.W. “Chip” Small, Anderson admitted “he may not have even known what (Ramirez’s) immigration status was,” according to minutes of the hearing. Ramirez will begin his court case afresh when he’s re-arraigned on the assault charge this week.

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José Antonio Manjares: Citing bad immigration advice in effort to vacate his 10-year-old guilty plea.

There’s no sure way to learn how many immigrant defendants locally or statewide have challenged their convictions in under Sandoval and Padilla. Ramirez’s attorney, Phil Safar of Wenatchee, said he would not comment without his client’s permission. Brent De Young, a Moses Lake attorney who’s filed such petitions in eastern Washington courts, also declined to comment for this story or say how many immigration-related plea motions he’s handling.

But this year in Chelan County alone, De Young filed motions to vacate pleas by José Antonio Manjares and Francisco Iniguez Aranda on immigration grounds. Manjares, now 31, entered an Alford plea in 2002 to unlawful imprisonment, on a charge that he restrained a 14-year-old girl from exiting his car.

His sentence was probation, but U.S. Immigration and Customs Enforcement detained and deported him just five days later. The Alford plea made the complete police report available to immigration agents, including allegations of assault for which Manjares was not convicted.

“There is no valid reason for a defense attorney representing a noncitizen to agree to an Alford plea, and doing so is almost always considered a blunder from an immigration perspective,” wrote immigration attorney Michael Grim in a supporting affidavit.

Manjares’s attorney at the time, David DeLong of Olympia, admitted in a court statement that “I was not sufficiently cognizant of the immigration consequences” to know whether Manjares would be deported.

Despite his plea and deportation, Manjares — now known by the nickname “Popeye” and the target of a number of fruitless drug investigations — was rearrested in Wenatchee in December 2011 on charges of selling methamphetamine. That case was dismissed in July after a trial jury deadlocked; however, Manjares was again deported before the current motion to vacate his 2002 plea could come to court.

Small refused to hear Manjares’s motion so long as the defendant couldn’t attend court, a decision De Young said he would appeal while Manjares seeks a waiver to reenter the country.

De Young filed last April on behalf of Francisco Iniguez Aranda, 33, who entered the U.S. illegally at age 21 but is married to a legal citizen, with three children. Iniguez pleaded guilty in 2010 to third-degree theft for stealing a pallet of cherries from Stemilt Growers’ warehouse, and was sentenced to 34 days in jail and $2,000 restitution.

Public defense attorney Bradley Drury represented him in Chelan County court, and it wasn’t until Iniguez retained a Yakima immigration lawyer in February 2011 that he learned his plea would make him ineligible for “cancellation of removal,” in which an illegal entrant petitions to remain in the country.

Drury told the court he reviewed Iniguez’s immigration status, and sought a sentence of less than a year to avoid an aggravated felony and help his client remain in the country. Under immigration law, aggravated felonies include certain crimes with a sentence of a year or more.

No hearing has yet been held on Iniguez’s motion.

Benson said the recent high court decisions — as well as a pending U.S. Supreme Court case that could make Padilla retroactive to past cases — mean lawyers must supplement their approach to criminal defense for immigrants.

“Is the average public defender going become an expert in immigration law? No,” she said. “What we want to be able to do is recognize that, hey, there’s a lot on the line. ... The defense attorney’s duty is to figure out what matters to your client.”

Jefferson Robbins: 664-7123