Ramirez v. Marsh

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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

1
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.

2
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.

2
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

3
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

4
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

5
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

6
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

7
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
3

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).

8
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

9
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)

16 ...

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).

10
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

11
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

12
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

13
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

4
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).

14
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

15
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).

16
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

17
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

18
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

5
“(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.

19
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

20
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.

21
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

22
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

23
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

24
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

25
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

26
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

27
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

28
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

29
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

30