Ramirez v. Marsh

Opinion

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112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: May 15, 2025 4 NO. S-1-SC-39966

5 FRANCISCO RAMIREZ, 6 JACQUELINE REYES-MENDOZA, 7 AND THEIR MINOR CHILD B.R.,

8 Petitioners, 9 v.

10 HON. DAYLENE A. MARSH, 11 District Court Judge, 12 Eleventh Judicial District Court,

13 Respondent, 14 and 15 DAVID PAULINO PADILLA-SUAZO, 16 Real Party in Interest. 17 ORIGINAL PROCEEDING

18 New Mexico Victims’ Rights Project 19 Carolyn Callaway 20 Albuquerque, NM

21 for Petitioners 1 Raúl Torrez, Attorney General 2 Mark W. Allen, Assistant Attorney General 3 Jeff D. Herrera, Assistant Attorney General 4 Van Snow, Acting Deputy Solicitor General 5 Santa Fe, NM

6 Administrative Office of the District Attorneys 7 Robert P. Tedrow, District Attorney 8 Theresa E. Walker, Deputy District Attorney 9 Farmington, NM

10 for Respondent

11 Burns Law Group, P.C. 12 Mitchel S. Burns 13 Farmington, NM

14 for Real Party in Interest

15 Martinez, Hart, Sanchez & Romero, P.C. 16 Julio C. Romero 17 Kelly Stout Sanchez 18 F. Michael Hart 19 Albuquerque, NM

20 for Amicus Curiae National Crime Victim Law Institute

21 Saiz, Chanez, Sherrell & Kaemper, P.C. 22 Denise M. Chanez 23 Albuquerque, NM

24 Skadden, Arps, Slate, Meagher & Flom, LLP 25 Gregory P. Ranzini 26 Wilmington, DE

27 for Amici Curiae National Immigrant Women’s Advocacy Project, Inc., & Victim 28 Rights Law Center 1 CONSOLIDATED WITH 2 NO. S-1-SC-40114

3 NEW MEXICO IMMIGRANT LAW 4 CENTER,

5 Petitioner, 6 v.

7 THE HON. CINDY LEOS, 8 District Court Judge, 9 Second Judicial District Court,

10 Respondent, 11 and 12 ALBERTO VILLANUEVA CAPRIO, 13 Real Party in Interest. 14 ORIGINAL PROCEEDING

15 Stelzner, Winter, Warburton, Flores, & Dawes, P.A. 16 Jaime L. Dawes 17 Albuquerque, NM

18 for Petitioner

19 Raúl Torrez, Attorney General 20 Van Snow, Acting Deputy Solicitor General 21 Santa Fe, NM

22 for Respondent 1 Bennett J. Baur, Chief Public Defender 2 Maxwell H. Pines, Assistant Public Defender 3 Rose M. Osborne. Assistant Public Defender 4 Albuquerque, NM

5 for Real Party in Interest 1 OPINION 2 BACON, Justice. 3 I. INTRODUCTION 4 {1} These consolidated cases come to the Court on petitions for writs of 5 superintending control. See Ramirez v. Marsh, S-1-SC-39966; N.M. Immigrant L. 6 Ctr. v. Leos, S-1-SC-40114. Both cases arise out of discovery disputes over criminal 7 defendants’ access to their alleged victims’ U-Visa and T-Visa (collectively U/T- 8 Visa) applications. Thus, both cases call on this Court to examine the policies and 9 principles underlying 8 U.S.C. § 1367, which sets forth federal privacy standards for 10 U/T-Visa applications, to determine whether such applications should be barred 11 from compelled disclosure by victims in New Mexico state courts. 12 {2} In accordance with the policies and principles underlying 8 U.S.C. § 1367, we 13 hold U/T-Visa applications are privileged material. Therefore, victims may not be 14 compelled by subpoena to disclose such applications. Additionally, we conclude 89 15 Fed. Reg. 34864, 34941 (Apr. 30, 2024) (to be codified at 8 C.F.R. § 214.216(c))1 16 (hereinafter, § 214.216(c)), which governs privacy standards for agencies in

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At the time of the district court proceedings, 8 C.F.R. § 214.11(p)(3) (2024).

For the purposes of this opinion, we refer to the current regulation, the text of which is unchanged from the previous version.

1 possession of T-Visa applications, and the attorney-client privilege prevented 2 compelled disclosure of the client file in Leos.2 We grant the writs of superintending 3 control, reverse the district courts’ contrary orders in both cases, and direct the Rules 4 of Evidence Committee to craft a new privilege for U/T-Visa applications in 5 accordance with this opinion. 6 II. BACKGROUND 7 {3} The consolidated cases share some commonalities. During the discovery 8 process, both defendants, each the real party in interest in the petitions before us, 9 learned their alleged victims had applied for U/T-Visas that allow crime victims to 10 obtain lawful residency in the United States. Both defendants sought access to the 11 corresponding visa application. In both cases, representatives of the victims sought 12 to protect those documents from disclosure. And in both cases, the district courts 13 ultimately ordered production of the respective documents for in-camera review and 14 disclosures to the defendants. Finally, in both cases, the district court rulings were 15 challenged, seeking writs of superintending control from this Court. Because the 16 cases differ in many other respects, we discuss the particulars of each case in turn.

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New Mexico Immigrant Law Center (NMILC) also argues its client file is protected from disclosure as attorney work-product. Because we hold NMILC’s file is protected by the attorney-client privilege, we do not reach this argument regarding attorney work-product.

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1 A. Marsh⸺Facts and Procedural History in the District Court 2 {4} In the district court case underlying Marsh, the State charged David Paulino 3 Padilla-Suazo with two counts of criminal sexual contact of a minor (CSCM), 4 contrary to NMSA 1978, Section 30-9-13(C)(1) (2003), after the parents of the 5 alleged victim, B.R., reported the allegations of sexual abuse to the police. Police 6 advised B.R.’s parents they could apply for a nonimmigrant U-Visa, which permits 7 victims of serious crime to lawfully reside in the United States for a few years. B.R.’s 8 parents followed the advice and applied for a U-Visa. 9 {5} Defense counsel conducted a pretrial interview with B.R.’s parents in which 10 counsel “asked if they had applied for citizenship,” to which B.R.’s parents replied 11 “that they had not.” Later, however, the prosecutor informed defense counsel that 12 B.R.’s parents had applied for U-Visas. Defense counsel issued subpoenas to B.R.’s 13 parents for “‘[a]ny and [a]ll applications for visa and or citizenship’” they had 14 submitted “‘from July 2017 to present date.’” B.R.’s parents moved to quash the 15 subpoenas through private counsel—an attorney with the New Mexico Victims’ 16 Rights Project—on the theory that U-Visa applications are protected from disclosure 17 by federal law. 18 {6} The district court ultimately denied the motions, noting “the purpose of the 19 request is impeachment” and “the state already conceded that the defense has a right

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1 to explore this line of defense.” After the ruling, the prosecutor offered as “a 2 compromise” that the district court review the documents in camera and redact any 3 sensitive information. The district court agreed to in-camera review and ordered 4 counsel for B.R.’s parents to turn over the documents within ten days. Counsel for 5 B.R.’s parents informed the district court she did not have the documents in her 6 possession. 7 {7} Before the ten-day deadline for turning over the documents, counsel for B.R.’s 8 parents filed a verified petition for emergency writ of superintending control and 9 request for stay in this Court. We granted the request for stay, and the district court 10 stayed all proceedings the following day. See Order Vacating Settings, State v. 11 Padilla-Suazo, D-1116-CR-2020-00835 (11th Jud. Dist. Ct. July 13, 2023). 12 B. Leos⸺Facts and Procedural History in the District Court 13 {8} The district court case underlying Leos arose when, E.M., a minor, told her 14 high school teacher she was being sexually abused by Alberto Villanueva Caprio 15 (Villanueva Caprio). The teacher gave this information to the Children, Youth & 16 Families Department (CYFD), as required by law. See NMSA 1978, § 32A-4-3(A) 17 (2021) (mandating school employees to report child abuse). CYFD contacted the 18 police. A grand jury indicted Villanueva Caprio on three counts of second-degree 19 criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, Section

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1 30-9-11(E)(1) (2009); manufacturing child pornography, contrary to NMSA 1978, 2 Section 30-6A-3(E) (2016); two counts of reckless child abuse, contrary to NMSA 3 1978, Section 30-6-1(D) (2009); and two counts of threatening a witness, contrary 4 to NMSA 1978, Section 30-24-3 (1997). See Grand Jury Indictment, State v. 5 Villanueva Caprio, D-202-CR-2021-01400 (2d Jud. Dist. Ct. July 16, 2021). 6 {9} In addition to contacting the police, CYFD referred E.M. to New Mexico 7 Immigrant Law Center (NMILC) for legal advice. NMILC assisted E.M. in filing an 8 application for a nonimmigrant T-Visa, which permits victims of severe human 9 trafficking to lawfully reside in the United States for a period of four years. 10 {10} During pretrial interviews, defense counsel inquired about E.M.’s efforts to 11 secure legal residency. Defense counsel then filed a motion to compel production of 12 E.M.’s T-Visa application. See Def.’s Mot. to Compel Produc. of Materials Related 13 to Alleged Victim’s Appl. for Immigration Relief, D-202-CR-2021-01400 (2d Jud. 14 Dist. Ct. Apr. 12, 2023). The State responded that E.M. had answered questions 15 about her T-Visa application in her pretrial interview with defense counsel, and the 16 State had “no information, documents, paper, or knowledge beside what the victim 17 disclosed in her pretrial interview in the state’s custody.” 18 {11} The district court granted the defense’s motion to compel, ordering E.M.’s 19 attorney at NMILC “to produce to defense counsel and counsel for the State all

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1 materials in her possession pertaining to any immigration relief sought for E.M. . . . 2 within [two] weeks of the issuance of this order.” See Order Granting in Part Defense 3 Mot. to Compel Immigration Information, D-202-CR-2021-01400 (2d Jud. Dist. Ct. 4 May 17, 2023). To comply with the order, the State subpoenaed the documents from 5 NMILC. 6 {12} In response, NMILC filed a motion to quash the subpoena, arguing E.M.’s 7 immigration file was protected by federal law, the attorney-client privilege, and 8 work-product doctrine. See NMILC’s Mot. to Quash Subpoena Duces Tecum, D- 9 202-CR-2021-01400, 1-2 (2d Jud. Dist. Ct. May 31, 2023). The district court denied 10 the motion to quash and ordered NMILC to furnish the documents. See Order Den. 11 Mot. to Quash and Mot. to Reconsider, D-202-CR-2021-01400 (2d Jud. Dist. Ct. 12 Sept. 12, 2023). NMILC filed an emergency petition for writ of superintending 13 control and request for stay in this Court. The day after the trial commenced, we 14 granted the stay and then set the two consolidated cases for oral argument. 15 III. DISCUSSION 16 A. Superintending Control 17 {13} Petitioners seek writs of superintending control to reverse the district courts’ 18 orders compelling the disclosure of the victims’ immigration applications. “Our 19 exercise of the power of superintending control is appropriate where necessary to

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1 prevent irreparable mischief, great, extraordinary, or exceptional hardship, or costly 2 delays and unusual burdens of expense.” State v. Wilson, 2021-NMSC-022, ¶ 14, 3 489 P.3d 925 (internal quotation marks and citation omitted). Superintending control 4 is an appropriate means by which this Court can resolve questions of privilege or 5 other protections of information in a discovery dispute. See, e.g., State ex rel. 6 Brandenburg v. Blackmer, 2005-NMSC-008, ¶¶ 7, 11, 137 N.M. 258, 110 P.3d 66 7 (resolving dispute over the work-product doctrine through writ of superintending 8 control). 9 B. Standard of Review 10 {14} “The standard of review for discovery orders is abuse of discretion. To the 11 extent a trial court’s discretionary decision is premised on the construction of a 12 privilege, however, review of that decision presents a question of law, subject to de 13 novo review.” Pincheira v. Allstate Ins. Co., 2007-NMCA-094, ¶ 27, 142 N.M. 283, 14 164 P.3d 982 (citations omitted); accord, e.g., N.M. Right to Choose/NARAL v. 15 Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (“[E]ven when we 16 review for an abuse of discretion, our review of the application of the law to the facts 17 is conducted de novo. Accordingly, we may characterize as an abuse of discretion a 18 discretionary decision that [is] premised on a misapprehension of the law.” (second 19 alteration in original) (internal quotation marks and citations omitted)). To the extent

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1 discovery orders implicate questions of constitutional interpretation, review is de 2 novo. State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (“We review questions of 3 statutory and constitutional interpretation de novo.” (brackets, internal quotation 4 marks, and citation omitted)). 5 C. Federal Law Governing U-Visas and T-Visas 6 1. The U/T-Visa programs 7 {15} U/T-Visas are nonimmigrant visas available to victims of certain crimes. 8 Congress created both U/T-Visas as part of amendments to the Violence Against 9 Women Act (VAWA). See Victims of Trafficking and Violence Protection Act of 10 2000, Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1533-34 (creating the U-Visa 11 program); id. § 107(e)(1)(C), 114 Stat. 1474, 1477 (creating the T-Visa program). 12 The U/T-Visa programs offer similar benefits in that they both permit immigrants 13 who are victims3 of certain types of crimes to live and work in the country for an 14 initial period of four years. 8 C.F.R. § 214.14(a)(9), (g)(1) (2024) (making available 15 a four-year U-Visa for victims of certain categories of crimes, including abusive 16 sexual contact); 8 C.F.R. § 214.203(a) and § 214.206(a)(1)-(3) (2024) (making

Family members of victims are eligible to receive the same benefits as

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victims if they meet certain criteria. See 8 C.F.R. § 214.14 (a)(10), (d)(2), (f) (2024)

(providing U-Visa eligibility criteria for qualifying family members); see also 8 C.F.R. § 214.11(c)(2), (k) (2024) (providing same, T-Visa context).

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1 available a four-year T-Visa for victims of “a severe form” of human trafficking). 2 After a recipient of either visa has resided in the United States for a period of three 3 years, he or she may apply for permanent residency. See 8 U.S.C. § 1255(m)(1)(A) 4 (U-Visa recipients); see also 8 U.S.C. § 1255(l)(1)(A) (T-Visa recipients). 5 {16} The U/T-Visa programs differ somewhat in their eligibility requirements and 6 application procedures. See generally Michael Kagan, Immigrant Victims, 7 Immigrant Accusers, 48 U. Mich. J.L. Reform 915, 962-63 (2015) (comparing both 8 programs as they address victims of trafficking). The salient difference is the U-Visa 9 requires the victim to potentially cooperate in the prosecution, whereas the T-Visa— 10 for minor victims—does not. Compare 8 U.S.C. § 1101(a)(15)(U)(i)(III) (requiring 11 U-Visa recipient to be “helpful, or . . . likely to be helpful” to the “investiga[tion] or 12 prosecut[ion of] criminal activity”), with 8 U.S.C. § 1101(a)(15)(T)(i)(III)(cc) 13 (exempting T-Visa recipients under the age of 18 from the requirement to cooperate 14 with law enforcement). Therefore, unlike a T-Visa application, a U-Visa application 15 must include a certification from a law enforcement agency—the “‘U Nonimmigrant 16 Status Certification’”—attesting to the applicant’s helpfulness. 8 C.F.R. § 17 214.14(a)(2), (a)(12), (c)(2)(i) (2024). Notwithstanding these differences, both U/T- 18 Visa applications both contain sensitive information about the applicant: 19 immigration status, physical address, safe mailing address, current locations of their

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1 immediate family members, and extensive personally identifiable information 2 including social security, alien registration, USCIS account, and passport numbers. 3 Additionally, both applications require the applicant to confirm or deny their 4 involvement in a variety of activities ranging from drug use to membership in a 5 communist party, and to confirm or deny whether they suffer from conditions 6 including substance addiction and communicable diseases. 7 2. Confidentiality of U/T-Visa information 8 {17} The confidentiality of U/T-Visa applications is protected by 8 U.S.C. § 1367. 9 That section, titled “[p]enalties for disclosure of information,” provides in relevant 10 part that

11 in no case may the Attorney General, or any other official or employee 12 of the Department of Justice, the Secretary of Homeland Security, the 13 Secretary of State, or any other official or employee of the Department 14 of Homeland Security or Department of State (including any bureau or 15 agency of either of such Departments)

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17 permit use by or disclosure to anyone (other than a sworn officer or 18 employee of the Department, or bureau or agency thereof, for legitimate 19 Department, bureau, or agency purposes) of any information which 20 relates to an alien who is the beneficiary of an application for relief 21 under paragraph (15)(T) [ or] (15)(U) . . . of section 101(a) of the 22 Immigration and Nationality Act (8 U.S.C. § 1101a . . . ) [the T-Visa or 23 U-Visa]. . . .

24 8 U.S.C. § 1367(a)(2) (emphasis added).

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1 {18} 8 U.S.C. § 1367(b) provides eight exceptions to the nondisclosure rule, seven 2 of which are undisputedly irrelevant in this case. The only exception in dispute is 8 3 U.S.C. § 1367(b)(2), which states:

4 The Secretary of Homeland Security or the Attorney General may 5 provide in the discretion of the Secretary or the Attorney General for 6 the disclosure of information to law enforcement officials to be used 7 solely for a legitimate law enforcement purpose in a manner that 8 protects the confidentiality of such information.

9 {19} Federal regulations further prohibit non-governmental agencies from 10 disclosing information about U/T-Visa recipients. See 8 C.F.R. § 214.216(c) 11 (“Agencies receiving information [relating to the beneficiary of a pending or 12 approved T-Visa application], whether governmental or non-governmental, are 13 bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. [§] 14 1367.”); 8 C.F.R. § 214.14(e)(2) (2024) (applying the same provision to U-Visa 15 applications). The penalty for willful disclosure of U/T-Visa information is 16 “appropriate disciplinary action” and a fine of up to $5,000 per occurrence. 8 U.S.C. 17 § 1367(c). 18 IV. ANALYSIS 19 {20} Petitioners in both cases, joined by amici, urge this Court to interpret 8 U.S.C. 20 § 1367 as a categorical bar on disclosure of U/T-Visa applications, as opposed to 21 only barring disclosure by certain federal employees. Additionally, Petitioners claim

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1 no 8 U.S.C. § 1367(b) exception applies. NMILC further argues that because 8 2 C.F.R. § 214.216(c) specifically prohibits non-governmental agencies from 3 disclosing T-Visa information, it was error for the district court to compel NMILC 4 to disclose such information. Both Petitioners also argue the criminal defendants in 5 their respective cases were not entitled to the victims’ visa applications because the 6 applications were not in the prosecution’s possession and consequently were not 7 subject to discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Finally, 8 NMILC argues the T-Visa application at issue constitutes a privileged attorney- 9 client communication, and so the subpoena requiring disclosure should have been 10 quashed. 11 {21} Below, we begin by examining the policy supporting 8 U.S.C. § 1367. We 12 conclude the polices and principles underlying 8 U.S.C. § 1367 support robust 13 protection of U/T-Visa applicants’ privacy, and that this protection is best expressed 14 as an evidentiary privilege; accordingly, we need not reach the question of whether 15 8 U.S.C. § 1367 itself provides a categorical bar to disclosure of U/T-Visa 16 applications that would prohibit compelled disclosure of an application from an 17 alleged victim. Next, we examine 8 C.F.R. § 214.216(c) and explain how that 18 regulation provides an additional bar to disclosure of the T-Visa application by 19 NMILC. Then, we turn to Petitioners’ Brady arguments. In addition to addressing

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1 due process concerns under Brady, we offer clarity on how our holding intersects 2 with defendants’ constitutional rights to compulsory process and confrontation. 3 Finally, we discuss NMILC’s argument that the T-Visa application is protected as a 4 privileged communication.

5 A. The Policies and Principles Underlying 8 U.S.C. § 1367 Lead Us to Hold 6 U/T-Visa Applications Are Privileged Material

7 {22} The law is not settled as to whether 8 U.S.C. § 1367 applies to all individuals 8 or only certain federal employees. Again, we need not answer this question, nor 9 address whether an 8 U.S.C. § 1367(b) exception applies, because our holding in 10 these consolidated cases creates an evidentiary privilege that prohibits compelled 11 disclosure of U/T-Visa applications from victims. However, examining other courts’ 12 analysis of 8 U.S.C. § 1367 informs our holding. 13 {23} Courts that interpret 8 U.S.C. § 1367 as a categorical bar to obtaining U/T- 14 Visa applications in discovery often reason that compelling a victim to disclose their 15 application to their alleged offender would run contrary to the purpose of the statute, 16 which is to safeguard victims’ information. See, e.g., Demaj v. Sakaj, No. 3:09 CV 17 255 (JGM), at 11 (D. Conn. Feb. 14, 2012) (ruling on petitioner’s motion to compel) 18 (concluding compelled production of a U-Visa application from the victim was 19 improper because the “disclosure of these documents for [impeachment purposes] 20 runs contrary to the intent of the protections afforded by 8 U.S.C. § 1367, the purpose

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1 of which is to protect the confidentiality of the applications by preventing disclosure 2 of these documents to alleged criminals” (footnote omitted)); Commonwealth v. 3 Riojas, No. CP-28-CR-0002169-2012, at 24 (Ct. Comm. Pleas Jan. 2, 2015) (opinion 4 affirming judgment)4 (concluding that “even though 8 U.S.C. § 1367 specifically 5 prohibits government officials from disclosing information pertaining to U-Visas, 6 requiring disclosure from the applicant would be contrary to the purpose of the 7 statute which is to protect the confidentiality of the applications by preventing 8 disclosure of these documents to alleged criminals” (internal quotation marks and 9 citation omitted)); cf. Hawke v. U.S. Dep’t of Homeland Sec., No. C-07-03456 10 RMW, at 10 (N.D. Cal. Sept. 29, 2008) (order denying first amended petition) 11 (noting that “one of the primary purposes of the VAWA confidentiality provision” 12 is “to prohibit disclosure of confidential application materials to the accused 13 batterer”). In addition to this reasoning, the Riojas Court also recognized that none 14 of the exceptions in 8 U.S.C. § 1367(b)(2) “involve disclosure of information to a 15 defendant in a criminal case, nor do any of them give the Court any discretion to

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This opinion was appended to an unpublished appellate court decision under Commonwealth v. Riojas, No. 2038 MDA 2015, J-S58013-16 (Pa. Super. Ct. Sept.

7, 2016) (nonprecedential).

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1 permit disclosure of the application or any information pertaining to a U-Visa 2 application.” Riojas, No. CP-28-CR-0002169-2012, at 23. 3 {24} Conversely, the Fifth Circuit came to the opposite conclusion in strict reliance 4 on the statutory text. See Cazorla v. Koch Foods of Miss., L.L.C., 838 F.3d 540, 552- 5 53 (5th Cir. 2016). There the Fifth Circuit held, “Section 1367 and its implementing 6 regulation clearly preclude discovery from the [agency], but they just as clearly do 7 not preclude discovery from the individual claimants. . . . It must therefore be read 8 not to preclude such disclosure.” Id. at 552 (footnote omitted). 9 {25} After examining other courts’ interpretations of 8 U.S.C. § 1367, we conclude 10 the policies and principles underlying 8 U.S.C. § 1367 support a broad prohibition 11 on discovery of U/T-Visa applications. Therefore, we hold U/T-Visa applications 12 are materials warranting an evidentiary privilege. As the holders of the privilege, 13 victims may refuse to produce their U/T-Visa application, and a subpoena 14 compelling production of any such application must be quashed pursuant to Rule 5- 15 511(C)(3)(a)(iii) NMRA. This follows logically in light of the potential chilling 16 effect a contrary rule might have on immigrants’ willingness to report crimes. 17 {26} Like all privileges, a victim can waive the privilege not to disclose a U/T-Visa 18 application. Rule 11-511 NMRA states, “[a] person who possesses a privilege 19 against disclosure of a confidential matter or communication waives the privilege if

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1 the person voluntarily discloses or consents to disclosure of any significant part of 2 the matter or communication. This rule does not apply if the disclosure is a privileged 3 communication.” We hold in the context of U/T-Visa applications that necessary 4 disclosure to law enforcement in order to complete the application is not, in itself, 5 waiver. Nor is disclosure in discovery by the applicant of the fact of a U/T-Visa 6 application a waiver.

7 B. 8 C.F.R. § 214.216(c) Presents an Additional Bar to NMILC’s Disclosure 8 of the T-Visa Application

9 {27} In Leos, NMILC contends 8 C.F.R. § 214.216(c) prohibits NMILC from 10 disclosing the T-Visa at issue. That regulation states, “Agencies receiving 11 information under this section, whether governmental or non-governmental, are 12 bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. [§] 13 1367.” 8 C.F.R. § 214.216(c). Although Defendant Villanueva Caprio argues 8 14 U.S.C. § 1367 only applies to federal employees, his brief is silent on whether 8 15 C.F.R. § 214.216(c) applies to NMILC as a non-governmental agency. Because there 16 is no dispute that NMILC is an “agenc[y] receiving information” under the T-Visa 17 program, we conclude 8 C.F.R. § 214.216(c) prohibits NMILC from releasing the 18 T-Visa application, as a subpoena requiring release compels NMILC to violate 19 federal law. Consequently, the subpoena unduly burdens NMILC and must be 20 quashed under Rule 5-511(C)(3)(a)(iv).

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1 {28} Our conclusion abides with the straightforward result reached in Cazorla with 2 regard to the agency involved in that case: the Equal Employment Opportunity 3 Commission (EEOC). The Cazorla Court held the confidentiality requirement under 4 the analogous federal regulation for U-Visa information, when read together with 8 5 U.S.C. § 1367, “was unambiguous: because the EEOC is an ‘agenc[y] receiving 6 information’ under the [U-Visa] program, it is ‘bound’ by § 1367’s confidentiality 7 provisions, and in turn, it may not ‘permit use by or disclosure to anyone . . . of any 8 information which relates to’ a [U-Visa] applicant.” Cazorla, 838 F.3d at 551. 9 Therefore, the Cazorla Court held, “To comply with [the defendant’s] discovery 10 requests would necessarily violate this command.” Id.

11 C. Due Process Requires the Government to Disclose Exculpatory Evidence 12 in Its Possession but Does Not Impose Any Duty on Third Parties

13 {29} “There is no general constitutional right to discovery in a criminal case.” 14 Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Further, “the Due Process Clause 15 has little to say regarding the amount of discovery which the parties must be 16 afforded.” Wardius v. Oregon, 412 U.S. 470, 474 (1973). Nevertheless, Respondents 17 rely on due process cases as the basis for their right to subpoena the U/T-Visa 18 applications. 19 {30} The government’s discovery obligation under the Due Process Clause of the 20 Fourteenth Amendment was first articulated in Brady, in which the United States

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1 Supreme Court held “the suppression by the prosecution of evidence favorable to an 2 accused upon request violates due process where the evidence is material either to 3 guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 4 373 U.S. at 87. Later, the United States Supreme Court clarified impeachment 5 evidence is subject to Brady’s disclosure requirement just as much as other 6 exculpatory evidence. See Giglio v. United States, 405 U.S. 150, 153-55 (1972); see 7 also, e.g., United States v. Bagley, 473 U.S. 667, 676 (1985) (explaining 8 impeachment “evidence is ‘evidence favorable to an accused,’ so that, if disclosed 9 and used effectively, it may make the difference between conviction and acquittal” 10 (citation omitted)). 11 {31} However, the Brady rule is limited to material evidence. “[T]he prosecutor is 12 not required to deliver his entire file to defense counsel, but only to disclose evidence 13 favorable to the accused that, if suppressed, would deprive the defendant of a fair 14 trial.” Bagley, 473 U.S. at 675 (footnote omitted). New Mexico courts have 15 explained the Bagley materiality standard as follows: “[E]vidence is material when 16 there is a realistic basis, beyond extrapolated speculation, for supposing that 17 availability of the lost evidence would have undercut the prosecution’s case.” State 18 v. Chavez, 1993-NMCA-102, ¶ 21, 116 N.M. 807, 867 P.2d 1189 (internal quotation 19 marks and citation omitted). This materiality requirement means Brady did not

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1 create a blanket discovery right. In Bagley, the United States Supreme Court 2 emphatically rejected “[a]n interpretation of Brady to create a broad, constitutionally 3 required right of discovery,” stating that such a rule “would entirely alter the 4 character and balance of our present systems of criminal justice.” 473 U.S. at 675 5 n.7 (internal quotation marks and citation omitted). 6 {32} Additionally, the Brady rule applies only to material evidence in the 7 possession of the prosecution. For purposes of Brady, “the prosecution” includes all 8 members of the prosecution team, which has been defined as “the prosecutor’s entire 9 office, as well as law enforcement personnel and other arms of the state involved in 10 investigative aspects of the case.” Case v. Hatch, 2008-NMSC-024, ¶ 46, 144 N.M. 11 20, 183 P.3d 905 (text only) 5 (citation omitted). At the outer limits, then, due process 12 imposes a duty on the “other arms of the state involved in investigative aspects of 13 the case,” id., but does not impose any duty on a non-governmental third party, such 14 as involved here. See Pennsylvania v. Ritchie, 480 U.S. 39, 43, 61 (1987) (holding 15 that the state of Pennsylvania’s “protective service agency charged with

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“(Text only)” indicates the omission of nonessential punctuation marks—

including internal quotation marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text otherwise unchanged.

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1 investigating cases of suspected mistreatment and neglect” was obligated to turn 2 over potentially material evidence for “in camera review by the trial court”). 3 {33} Accordingly, we conclude due process and Brady require the following in the 4 U/T-Visa context. First, the prosecution is required—if it is aware—to disclose the 5 fact an alleged victim or victim’s family applied for a U/T-Visa application because 6 the fact of a U/T-Visa application is relevant impeachment material. See, e.g., 7 Roldan v. Town of Cicero, No. 17-cv-03707, at 20 (N.D. Ill. Aug. 19, 2021) 8 (memorandum opinion and order) (“Irrespective of whether the agreement 9 concerned a U-Visa application or some other type of immigration benefit, it is, in 10 the [c]ourt’s view, ‘beyond debate’ that the agreement itself is Brady/Giglio 11 material.”). 12 {34} Second, if the prosecution—or an arm of the prosecution—is in possession of 13 the U/T-Visa application itself, Brady is implicated to the extent information within 14 the application “is material either to guilt or to punishment.” See Brady, 373 U.S. at 15 87; see also Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“[T]he individual prosecutor 16 has a duty to learn of any favorable evidence known to the others acting on the

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1 government’s behalf in the case, including the police.”).6 If information within the 2 U/T-Visa application is material, then the information—not the application—should 3 be disclosed to the defendant. Cf. United States v. Kohring, 637 F.3d 895, 898, 908- 4 10 (9th Cir. 2011) (holding the prosecutor had a Brady obligation to share 5 noncumulative exculpatory facts in the prosecutor’s email that constituted opinion 6 work-product but did not have an obligation to disclose the email itself). If 7 materiality is contested, in-camera review by the trial court is appropriate to 8 determine materiality.

9 D. Compulsory Process Does Not Create a Right to Subpoena Documents; 10 It Provides a Discovery Right Coextensive with Due Process

11 {35} The Compulsory Process Clause of the Sixth Amendment of the United States 12 Constitution, applicable to the states by the due process clause of the Fourteenth 13 Amendment, Washington v. Texas, 388 U.S. 14, 19 (1967), provides “the right to the 14 government’s assistance in compelling the attendance of favorable witnesses at trial” 15 but has never been interpreted as an independent basis “to require the government 16 to produce exculpatory evidence.” Ritchie, 480 U.S. at 56 (footnote omitted); see

To the extent that State v. Huerta-Castro concluded the contents of a U-Visa

6

application were material because the fact of the application was material, 2017-

NMCA-026, ¶¶ 45-46, 390 P.3d 185, it was wrongly decided.

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1 U.S. Const. amend. VI (recognizing the defendant’s right “to have compulsory 2 process for obtaining witnesses in his favor”). 3 {36} The Ritchie Court concluded “that compulsory process provides no greater 4 protections in this area than those afforded by due process” and therefore analyzed 5 the defendant’s right to pretrial discovery of documents under the due process 6 standard set forth in Brady. Ritchie, 480 U.S. at 56 (emphasis omitted). Therefore, 7 we conclude the due process framework, discussed above, is appropriate for 8 determining the extent to which a defendant has a right to pretrial discovery of U/T- 9 Visa information.

10 E. The Confrontation Clause Requires the Defendant Be Permitted to 11 Cross-Examine a Victim About the Fact of a U/T-Visa Application; It 12 Provides No Further Right to Discovery of the Application

13 {37} The Confrontation Clause of the Sixth Amendment of the United States 14 Constitution, applicable to the states by the due process clause of the Fourteenth 15 Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides a criminal 16 defendant the right to face and cross-examine those who testify against them. See 17 Ritchie, 480 U.S. at 51. “Cross-examination is the principal means by which the 18 believability of a witness and the truth of his testimony are tested. . . . [T]he cross- 19 examiner is not only permitted to delve into the witness’ story to test the witness’ 20 perceptions and memory, but the cross-examiner has traditionally been allowed to

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1 impeach, i.e., discredit, the witness.” Davis v. Alaska, 415 U.S. 308, 316 (1974). 2 Impeachment may be of a general nature, or it may be more specifically “directed 3 toward revealing possible biases, prejudices, or ulterior motives of the witness as 4 they may relate directly to issues or personalities in the case at hand. The partiality 5 of a witness is subject to exploration at trial[] and is ‘always relevant as discrediting 6 the witness and affecting the weight of his testimony.’” Id. (quoting 3A J. Wigmore, 7 Evidence § 940, at 770 (Chadbourn rev. 1970)). “[T]he exposure of a witness’ 8 motivation in testifying is a proper and important function of the constitutionally 9 protected right of cross-examination.” Id. at 316-17 (citation omitted). Specific 10 impeachment evidence that goes to a witness’s improper motive, such as bias, cannot 11 be withheld from the jury. See id. at 318. However, the trial court can set “reasonable 12 limits” on the scope of cross-examination in consideration of, “among other things, 13 harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation 14 that is repetitive or only marginally relevant.” State v. Montoya, 2014-NMSC-032, 15 ¶ 47, 333 P.3d 935 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). 16 {38} Applying the cross-examination standard set forth in Davis to the context of 17 U/T-Visas, we conclude the defense may impeach the victim’s credibility by cross- 18 examining the victim about the potential benefits that a U/T-Visa offers to a victim, 19 acknowledging these benefits are significant and could provide ulterior motives. See

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1 generally Kagan, supra, at 945 (discussing the tensions inherent in the U/T-Visa 2 system whereby the mechanisms established to protect victims and incentivize 3 truthful reporting also serve to cast suspicion on all U/T-Visa applicants). Thus, the 4 defendant has a constitutional right to attempt to expose these potential motives 5 through vigorous cross-examination. Therefore, because the fact of a U/T-Visa 6 application is relevant to the victim’s motive, a defendant may: cross-examine 7 witnesses, including victims, as to their knowledge and participation in the U/T-Visa 8 application process and their reasons for their involvement; impeach a witness with 9 prior inconsistent statements on the topic; educate the jury about what a U/T-Visa is 10 and the benefits it offers through cross-examination of the state’s witnesses or direct 11 examination of defense witnesses; and make related closing arguments. 12 {39} The weight of authority from other jurisdictions bears this out. While many 13 opinions on this topic are nonprecedential or the error was found to be harmless, the 14 majority of courts hold a defendant has the right to present to the jury the fact that a 15 victim has applied for a U-Visa or a T-Visa. See, e.g., State v. Quintero, No. 35752- 16 0-III, at 11-14, 17 (Wash. Ct. App. Jan. 7, 2020) (unpublished opinion) (stating, in 17 dicta, it would be error to prohibit cross-examination on fact of a U-Visa in a case 18 where the victim had actually applied for a U-Visa); see also Romero-Perez v. 19 Commonwealth, 492 S.W.3d 902, 906-08 (Ky. Ct. App. 2016) (holding the district

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1 court erred by preventing defendant from asking whether victim had applied for a 2 U-Visa, but the error was harmless); State v. Perez-Aguilera, No. 110983, at 6-7 3 (Kan. Ct. App. Mar. 27, 2015) (memorandum opinion) (holding it was harmless 4 error to prevent defense counsel from cross-examining the victim about a U-Visa 5 application); State v. Valle, 298 P.3d 1237, 1240, 1244 (Or. Ct. App. 2013) (holding 6 the fact of a U-Visa “was relevant impeachment evidence” and its exclusion was not 7 harmless error). 8 {40} Nevertheless, the right to confrontation is not implicated when the trial court 9 quashes a subpoena duces tecum. The Confrontation Clause did not create “a 10 constitutionally compelled rule of pretrial discovery.” Ritchie, 480 U.S. at 52. “The 11 ability to question adverse witnesses . . . does not include the power to require the 12 pretrial disclosure of any and all information that might be useful in contradicting 13 unfavorable testimony.” Ritchie, 480 U.S. at 53 (footnote omitted). 14 {41} In Ritchie, the United States Supreme Court determined the Confrontation 15 Clause was not violated when the trial court denied the defendant pretrial access to 16 the victim’s medical records that were held by Pennsylvania’s protective service 17 agency. 480 U.S. at 54. “[I]t only would have been impermissible for the judge to 18 have prevented Ritchie’s lawyer from cross-examining the [victim]. Because 19 defense counsel was able to cross-examine all of the trial witnesses fully,” including

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1 the victim, the Ritchie Court held “the Pennsylvania Supreme Court erred in holding 2 that the failure to disclose the [state’s agency] file violated the Confrontation 3 Clause.” 480 U.S. at 54. 4 {42} Accordingly, courts have held allowing a defendant to introduce the fact of a 5 U/T-Visa application satisfies the defendant’s confrontation rights, and a defendant 6 does not have an additional right to inspect the application materials themselves. 7 See, e.g., State v. Marroquin-Aldana, 2014 ME 47, ¶¶ 37-38, 89 A.3d 519 8 (concluding the defendant’s rights were satisfied by vigorous cross-examination of 9 the victim about her U-Visa application, and the defendant’s request for the entire 10 file of the victim’s immigration attorney “bears the hallmarks of an impermissible 11 fishing expedition”); see also Riojas, No. CP-28-CR-0002169-2012, at 23, 12 (affirming the trial court’s grant of the motion to quash the defendant’s subpoena of 13 the U-Visa application because “[t]he Confrontation Clause does not constitutionally 14 guarantee access to pre-trial discovery” (internal quotation marks and citation 15 omitted)); cf. United States v. Brown, 347 F.3d 1095, 1098-99 (9th Cir. 2003) 16 (holding the defendant’s “thorough cross-examination” of the witness about his 17 “strong incentive to curry favor with the government by providing information about 18 drug dealers” satisfied the defendant’s Sixth Amendment rights, “even without the 19 benefit of [the witness’s] complete” immigration file). We agree, and hold the

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1 Confrontation Clause entitles a defendant to cross examine about the fact of a U/T- 2 Visa application but grants no discovery right of the application.

3 F. The Attorney-Client Privilege Posed an Additional Bar to the Compelled 4 Disclosure in Leos

5 {43} Privilege operates as an exception to the general rule that “the public has a 6 right to every man’s evidence.” Albuquerque Rape Crisis Ctr. v. Blackmer, 2005- 7 NMSC-032, ¶ 18, 138 N.M. 398, 120 P.3d 820 (text only) (citation omitted). New 8 Mexico only recognizes evidentiary privileges that are “required by the constitution, 9 these rules, or other rules adopted by the supreme court.” Rule 11-501 NMRA. A 10 subpoena seeking privileged information must be quashed. See Rule 5- 11 511(C)(3)(a)(iii). Privileged information that was compelled erroneously is not 12 admissible. Rule 11-512(A) NMRA. 13 {44} Here, the attorney-client privilege posed an additional bar to the compelled 14 disclosure of NMILC’s client file in Leos. New Mexico’s attorney-client privilege 15 is set forth in Rule 11-503(B)(1) NMRA, which provides, “[a] client has a privilege 16 to refuse to disclose, and to prevent any other person from disclosing, a confidential 17 communication made for the purpose of facilitating or providing professional legal 18 services to that client . . . between the client and the client’s lawyer or 19 representative.” “The attorney-client privilege is one of the oldest recognized 20 privileges for confidential communications.” Swidler & Berlin v. United States, 524

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1 U.S. 399, 403 (1998) (citation omitted); see also 1 McCormick on Evid. § 87 (8th 2 ed. 2020) (“The notion that the loyalty owed by the lawyer to his client disables him 3 from being a witness in his client’s case is deep-rooted in Roman law.”). 4 “Confidential disclosures by a client to an attorney made in order to obtain legal 5 assistance are privileged. The purpose of the privilege is to encourage clients to make 6 full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403 (1976) 7 (citations omitted). 8 {45} In Leos, the district court compelled an attorney to produce a client file. An 9 attorney’s client file contains the quintessential “confidential communication[s] . . . 10 between the client and the client’s lawyer” which the privilege is meant to protect. 11 Rule 11-503(B)(1). Defendant Villanueva Caprio makes no attempt to argue the 12 privilege did not apply. More importantly, the district court did not offer any 13 reasoning as to why the privilege did not apply. See Order Den. Mot. to Quash, D- 14 202-CR-2021-01400 (2d Jud. Dist. Ct. Sept. 12, 2023). The order simply states the 15 district court “reviewed the pleadings and argument of counsel” and “hereby denies 16 the Motion.” Id. 17 {46} As the privilege applies and was invoked, the district court erred by ordering 18 NMILC to produce privileged documents. We recognize that in extraordinary 19 circumstances, a criminal defendant’s need for certain evidence may prevail over a

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1 privilege-holder’s claim of privilege. See Edward J. Imwinkelried, The New 2 Wigmore: Evidentiary Privileges, § 11.3 (2002) (explaining that when determining 3 whether a defendant’s constitutional right to present evidence surmounts 4 exclusionary rules of evidence such as privileges, a court weighs the policy 5 considerations of the exclusionary rule against the strength of the accused’s interest 6 in presenting the evidence, with the strength of the interest gauged by evaluating 7 factors including the availability of alternative, admissible evidence; the importance 8 of the issue the item of evidence is relevant to prove; the probative value of the item 9 of evidence on the issue it is relevant to; and the reliability of the item of evidence 10 barred by the exclusionary rule). However, no such showing was made in this case, 11 and a mere assertion the T-Visa application could possibly contain exculpatory or 12 impeaching evidence cannot defeat the attorney-client privilege. 13 V. CONCLUSION 14 {47} In sum, and in accordance with the principled policies underlying 8 U.S.C. § 15 1367, we hold U/T-Visa applications are privileged material and the subpoenas 16 requiring their disclosure must be quashed. Further, we hold 8 C.F.R. § 214.216(c) 17 and attorney-client privilege prohibited disclosure of the client file in Leos. 18 Therefore, we grant the writs of superintending control and reverse the district 19 courts’ orders in both consolidated cases. We direct the Rules of Evidence

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1 Committee to draft a new privilege for U/T-Visa applications consistent with this 2 opinion. 3 {48} IT IS SO ORDERED.

4 5 C. SHANNON BACON, Justice

6 WE CONCUR:

7 8 DAVID K. THOMSON, Chief Justice

9 10 MICHAEL E. VIGIL, Justice

11 12 JULIE J. VARGAS, Justice

13 14 BRIANA H. ZAMORA, Justice