Appeals court rules DACA resident understood immigration risks

An Elkhart County man who pleaded guilty to drug charges but successfully met certain conditions to avoid a felony conviction is still facing deportation after the Indiana Court of Appeals found his initials on the advisement were enough to indicate he understood the immigration consequences.

Pedro Rayo Zagal was charged with a Class D felony for possession of cocaine in January 2007. He eventually entered into a written plea agreement and was able to keep a felony conviction off his record by, among other things, staying away from drugs, obtaining his high school equivalency diploma and performing community service. He was subsequently convicted of possession of cocaine as a Class A misdemeanor and given a one-year suspended sentenced.

However, 10 years later in 2018, Zagal learned from an immigration attorney he could not become a citizen of the United States because of his drug conviction. He came to the U.S. as a 7-year-old and is currently covered by the Deferred Action for Childhood Arrivals (DACA) program. The attorney told Zagal that if DACA gets thrown out, he could be deported.

Zagal then filed for post-conviction relief. He argued his trial counsel was ineffective for not advising him that his status as an immigrant could change if he entered the guilty plea. The post-conviction court denied the petition, finding Zagal had told the trial court at his plea hearing that he had read the agreement and he wrote his initials next to the provision that stated he could face deportation as a result pleading guilty.

In Pedro Rayo Zagal v. State of Indiana, 19A-PC-694 https://www.in.gov/judiciary/opinions/pdf/07241901nhv.pdf, the Court of Appeals affirmed.

Before the appellate panel, Zagal did not dispute either that he was told he could be deported if he was convicted of a crime as an illegal alien or that his plea agreement contained the provision about deportation. Instead, Zagal asserted his trial counsel should have separately advised him of the immigration consequences of a guilty plea.

Citing Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019), https://www.theindianalawyer.com/articles/49632-majority-justices-grant-pcr-to-dreamer-dissent-calls-ruling-bridge-too-far the appellate court noted the Indiana Supreme Court has held that trial counsel just has to let the client read and mark the advisement since reading the form will put the defendant on notice about any potential immigration consequences.

“Here, even assuming that trial counsel did not separately advise Rayo Zagal, Rayo Zagal admitted that he read the advisements at his initial hearing and in his plea agreement,” Chief Judge Nancy Vaidik wrote for the court. “That is all that is required.”