PHOENIX – The U.S. Supreme Court has cleared the way for a Mexican national to get a new trial — this time without the bad legal advice he was given the first time that resulted in his deportation.
But his attorney acknowledged that will require the cooperation of Immigration and Customs Enforcement. And that, said Ray Ybarra Maldonado, is not a given.
Without comment, the justices upheld the decision by the Arizona Supreme Court that Hector Sebastion Nuñez-Diaz would never have entered into a plea deal on a drug charge had his original attorney informed him it would result in his automatic removal from this country. Maldonado said he will now ask Maricopa County Superior Court to set a hearing for a new trial.
The decision by the nation’s high court came over the objections of Attorney General Mark Brnovich.
In his own legal pleadings, he did not dispute that Nuñez-Diaz would never have entered into a plea deal on a drug charge had his attorney informed him it would result in his automatic removal from this country.
But Brnovich said that is effectively irrelevant as Nuñez-Diaz was in the country illegally when he was stopped, found with methamphetamine and cocaine and eventually pleaded guilty to possession of drug paraphernalia. Brnovich also said the judge gave a warning when the plea deal was approved that he could be “removed” from the country.
And Brnovich made it clear in his filings that if the U.S. Supreme Court sided with Nuñez-Diaz – as it eventually did – it would pave the way for future claims by people not in this country legally to also seek to back out of plea deals in hopes of avoiding deportation.
According to court records, Nuñez-Diaz initially was charged with the drug possession felonies. His family retained a law firm after being told that while Nunez-Diaz had a difficult case, it was possible to avoid deportation.
The attorney assigned by the firm advised Nunez-Diaz to take a plea deal to a single felony which resulted in probation. Only then was he informed by ICE that, because of the deal, he could not be released on bond and would be deported.
Nuñez-Diaz then got a new attorney to seek to rescind the plea.
Justice Scott Bales, writing for the Arizona Supreme Court, said the Sixth Amendment guarantees a defendant the right to counsel.
“The right to counsel includes the right of effective assistance of counsel,” the judge wrote.
He said that, generally speaking, an attorney advising a client to take a plea need do no more than advise someone who is not a citizen that the pending criminal charges “may carry a risk of adverse immigration consequences.”
But Bales said when those consequences are clear “the duty to give correct advice is equally clear and counsel must inform their client of those consequences.” And he said that the crime to which Nuñez-Diaz agreed to plead guilty falls into a category that not only would result in deportation but permanently prevent him from ever returning to this country.
Maldonado said the case now starts over.
“We’ll see if we can get a different outcome than we had last time,” he told Capitol Media Services.
A spokeswoman for the Maricopa County Attorney’s Office said no decision has been made whether to retry the case.
Maldonado said he would file suit if ICE refuses to allow his client back in the United States for a new trial.
“Our client has due-process rights,” he said. And Maldonado said Nuñez-Diaz is harmed because he has a conviction on his record and need a chance to have his day in court.
That, however, still leaves another question.
Even if a new trial results in an acquittal — or he is not retried — that still leaves the fact that Nuñez-Diaz was in the country illegally. But Maldonado said that, without the criminal record, that puts his client in a better legal position, if not now then in the future.
