PHOENIX — Attorney General Mark Brnovich wants the U.S. Supreme Court to deny a new trial to a man whose says bad legal advice he got in a criminal case resulted in his deportation.
In filings with the nation’s high court, Brnovich does not dispute the claim of Hector Sebastion Nunez-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 wants the justices to rule all that is effectively irrelevant.
He said that Nunez-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.
“There is nothing fundamentally unfair or unreliable about someone who is unlawfully presented in the United States being deported,” the legal papers states. “Indeed, that is typically was is (ITALICS) supposed (ROMAN) to occur — even for unauthorized aliens not convincingly charged with crimes that provide for mandatory deportation.”
Brnovich wants the nation’s high court to intercede because he has lost that argument at every step until now, right up to a decision earlier this year by the Arizona Supreme Court saying that Nunez-Diaz is entitled to a do-over in his drug possession case because his Sixth Amendment right to assistance of counsel was violated.
It isn’t just the possibility of a new trial that concerns Brnovich.
He told the justices that the ruling of the state Supreme Court, left undisturbed, creates a bad precedent for Arizona, paving 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.
“The state already suffers from a decidedly disproportionate share of the burdens from the country’s broken immigration system,” Brnovich wrote. “Requiring Arizona to shoulder the additional burden of an erroneous Sixth Amendment decision that greatly increases the risk of a large number of its criminal convictions being set aside is plainly unwarranted.”
Even if the U.S. Supreme Court rebuffs Brnovich, it remains unclear whether Nunez-Diaz, currently in Mexico, actually will get back into this country given that, at the time of his arrest, he already was a “deportable immigrant.”
Ray Ybarra Maldonado, his current attorney, said he hopes to now get a new trial for Nunez-Diaz, one where ICE would allow him back into the country so he could plead innocent to the charges. That, said the lawyer, could give him a chance to escape automatic deportation.
But Ybarra Maldonado acknowledged it is possible that, even if his client is acquitted, he still could end up deported. Still, the attorney said, it is a far cry from the automatic expulsion.
According to court records, Nunez-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 lawyer 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 Immigration and Customs Enforcement that, because of the deal, he could not be released on bond and would be deported.
Nunez-Diaz then got a new lawyer 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.”
That, said Bales, is the case here. He said the crime to which Nunez-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.
Brnovich, taking issue with that ruling, said the justices did not cite any evidence that Nunez-Diaz would have been spared deportation even if he had not pleaded guilty to a drug-related offense.
“Deportation hearings where unlawful presence is conceded and no defense to deportation is offered have but one (ITALICS) lawful (ROMAN) outcome,” he wrote. Brnovich said that while “idiosyncrasies” in the immigration system might have led to a different result “Nunez-Diaz suffered no cognizable prejudice because he has no right to a decision-maker that would reach an unlawful decision.”
Ybarra Maldonado told Capitol Media Services earlier this year that if his client gets a new trial the plan would be to ask ICE to “parole him in” to the United States. But he conceded that is at the discretion of the agency.
He acknowledged his client’s unauthorized status in the United States. But Ybarra Maldonado said that doesn’t mean Nunez-Diaz will be deported again if he beats the drug charges.
“I definitely think he’s in a much better situation if he’s in ICE custody without any criminal conviction versus with criminal conviction,” the attorney said. That includes seeking a bond hearing from the immigration judge, potentially delaying final resolution for years.
In that time, Ybarra Maldonado said Congress could enact immigration reform allowing someone like his client to remain permanently.
Brnovich is not the only one believing U.S. Supreme Court review is merited.
In the Arizona Supreme Court ruling earlier this year, Justice Clint Bolick acknowledged that the decision comports with a prior U.S. Supreme Court decision about the remedies for what happens when a lawyer’s advice falls below what would be reasonable. But he urged the nation’s high court to reconsider that decision, saying it “places unnecessary burdens on Arizona courts.”