A district court judge ruled Monday that an El Salvadoran man cannot reverse his three-and-a-half-year-old guilty plea on cocaine charges.
The convicted man, Isabel Orellana-Santos, entered a motion earlier this month asking to withdraw his plea, claiming his attorney had not properly advised him of the consequences it could have on his immigration status.
Orellana-Santos had temporary asylum, which the federal government granted to émigrés from El Salvador after two earthquakes rocked the country in late 2001.
He pleaded guilty to cocaine possession in February 2005, and his temporary status expired the next month. Efforts to renew it since then have been denied. And attorney Ted Hess argued the denial was because of his felony conviction (immigrants are not eligible for temporary protected status if convicted of two misdemeanors or one felony).
“Had he known the plea to a felony would take away his [temporary status], he would have gone to trial rather than plea [guilty],” Hess said at a hearing on the motion earlier this month. Hess represented Orellana-Santos in his claim of “ineffective assistance of counsel” against attorney Peter Rachesky, who brokered Orellana-Santos’ original plea agreement with the district attorney’s office.
Hess argued that his client’s understanding had been that he “could” lose his temporary status, while, in fact, he “would” lose it if he pleaded guilty.
But Chief District Judge James Boyd wrote in his ruling Monday that Orellana-Santos “was notably complimentary of his former attorney’s work.”
Regarding Hess’s claim that his client would have gone to trial had he known a guilty plea could mean he’d lose his green card, Boyd wrote that Orellana-Santos “was not asked and never testified he would not have pled guilty if he had known more about the immigration consequences of his plea.”
Hess has encouraged Orellana-Santos to appeal the ruling, and take it to the state supreme court if necessary. Since 1987, the state’s highest court has not ruled on an attorney’s specific duties to criminal defendants who may face immigration consequences from their convictions. That case, which Boyd cited in his ruling, says attorneys must investigate possible immigration consequences enough to satisfy “minimally acceptable levels of professional performance.”
Commenting on the ruling yesterday, Hess said that “the human element here is very sad. Isabel is about the most gentle young man you would ever want to meet, and now he joins all the other illegals who are clinging for dear life in the United States.”
Orellana-Santos is not yet facing federal deportation charges, however. Judge Boyd noted that he is and has been deportable since November 2004. Both his felony plea and his drug conviction are separately grounds for deportation, according to federal guidelines.
andrew@aspendailynews.com
