AZTEC — A Kirtland man who was convicted and served a prison sentence for sexually assaulting a 15-year-old girl was allowed to take back his guilty plea because he didn't know the plea could result in his deportation.
Now, Marvin Contreras, 40, will again face three counts of criminal sexual penetration against a minor under 16 in connection to his arrest in October 2002.
Contreras, a native of Guatemala who has lived in the United States since he was 7 years old, pleaded guilty in December 2002 to having sex with his children's 15-year-old babysitter.
Court documents filed against him stated Contreras, who was 28 at the time, had sex with the girl three times from July 2 to July 4 in 2002.
He served nearly two years in prison, according to a state court website.
He was released in November 2004 and moved back to San Juan County for eight years until his arrest by Immigration and Customs Enforcement agents in May 2012.
A lengthy period between conviction and deportation is not uncommon, said Jessica Martin, an attorney for the New Mexico Immigrant Law Center.
"Certain convictions make a person deportable," she said. "Sometimes, it takes time before Immigration realizes someone has been convicted of a deportable offense."
Deportable offenses range from felonies to misdemeanors. Sexual assault against a child undoubtedly qualifies, Martin said.
The federal government started deportation proceedings because of Contreras' conviction after his 2012 arrest. A federal judge ordered his removal from the country in February and an appeal of that decision is pending.
In hopes of staying in the country, Contreras filed a motion to withdraw his guilty plea in January 2013, according to court documents. District Judge William Birdsall granted the motion on May 6.
Contreras said in a court hearing in April 2013 that he did not know his guilty plea could result in his deportation. He said he never had a conversation with his former attorney, Cosme Ripol, about the possibility.
A copy of the plea agreement he signed states his conviction can have an effect on his immigration status.
Birdsall wrote in the order vacating the plea and conviction that because the court lost an audiotape of Contreras' change-of-plea hearing, there was no way to know if the judge or Ripol told Contreras about possible immigration issues stemming from his guilty plea.
Ripol signed an affidavit that stated he doesn't remember having a conversation about deportation with his former client.
Larry Moore, the pastor of World Harvest Center in Farmington, also filed an affidavit on Contreras' behalf that said Contreras didn't know he could be deported because of his guilty plea.
"The United States is all Mr. Contreras has ever known since he was brought here as a young child, and deportation would mean giving up his family and home here," Moore said in the affidavit. "If he had even a small chance of not losing at trial, I am sure he would have taken that chance."
Moore said after his release from prison Contreras thought he could move forward with his life. His wife is a juvenile probation officer, and Contreras planned to open a burrito business.
"Despite the Court's grave misgivings as to the accuracy or truthfulness of Defendant's version of the events, the distressing loss of the audio tape puts the Court in the position of having to base a decision upon the record as it stands," Birdsall wrote. "Absent the ability to review the plea proceeding, the record as it stands demonstrates that Defendant did not knowingly, voluntarily and intelligently enter his guilty plea."
The decision brings the case back to the beginning. Contreras, who has posted bond and is living in Kirtland with his wife and children, is scheduled to appear in court for a pretrial conference on June 26.
The victim in the case and her family still live in San Juan County.
Each of the three counts Contreras is charged with carries a possible 18-month sentence, adding up to a maximum sentence of four and a half years in prison. Because he has already served two years in prison and completed one year of probation, even if he is convicted of all three charges, he could only be sentenced to serve the remaining 18 months, San Juan County Chief Deputy District Attorney Bren Capshaw said.
But if he is convicted, he will almost certainly be deported, according to court documents.
"We have no opinion on him being deported," Capshaw said. "He was convicted of criminal sexual penetration of a minor under 16, and that's not something the state is going to walk away from."
Contreras could not be reached for comment.
Ryan Boetel can be reached at email@example.com; 505-564-4644. Follow him on Twitter @rboetel