Privilege for U-Visa and T-Visa Applications in Criminal Discovery: Ramirez v. Marsh

Introduction

Ramirez v. Marsh (2025) is a landmark New Mexico Supreme Court decision consolidating two original proceedings—Francisco Ramirez, et al. v. Hon. Daylene A. Marsh (S-1-SC-39966), and New Mexico Immigrant Law Center v. Hon. Cindy Leos (S-1-SC-40114). Both cases involve criminal defendants who sought discovery of their alleged victims’ applications for U-Visas or T-Visas (collectively “U/T-Visas”), on the theory that the victims had an incentive to fabricate or embellish testimony in exchange for immigration relief. The petitioners—victims’ representatives and service agencies—filed petitions for writs of superintending control after district courts ordered production of those applications. The Supreme Court’s ruling establishes a new privilege shielding U-Visa and T-Visa application materials from compelled disclosure in New Mexico state courts.

Summary of the Judgment

In a unanimous opinion authored by Justice Bacon, the Court held:

U/T-Visa applications are privileged material: Victims may refuse to produce them, and subpoenas for those documents must be quashed under Rule 5-511(C)(3)(a)(iii) NMRA.
8 C.F.R. § 214.216(c) prohibition: Non-governmental agencies (e.g., the New Mexico Immigrant Law Center) holding T-Visa applications are bound by 8 U.S.C. § 1367’s confidentiality requirements and cannot disclose these materials under Rule 5-511(C)(3)(a)(iv).
No government Brady duty on third parties: Due process (Brady v. Maryland) obligates the prosecution to disclose material exculpatory evidence in its possession—but does not extend to non-governmental third parties holding U/T-Visa files.
Confrontation and compulsory-process rights: Defendants may cross-examine victims about the fact of a U/T-Visa application, but those constitutional guarantees do not create a broader pretrial discovery right to inspect the application documents.
Attorney-client privilege: The T-Visa application file held by NMILC was protected by the attorney-client privilege, and the district court erred in ordering its production.

The Court granted the writs of superintending control, reversed the district courts’ orders, and directed the Rules of Evidence Committee to draft a specific privilege for U/T-Visa applications consistent with this ruling.

Analysis

Precedents Cited

The Court drew on:

8 U.S.C. § 1367(a)(2): Prohibition on federal officials disclosing U/T-Visa information, with civil penalties for violations.
8 C.F.R. § 214.216(c): Extends § 1367’s confidentiality to any “agency receiving information,” governmental or non-governmental.
Brady v. Maryland (1963) and progeny (Giglio v. United States, Bagley):
– Brady requires disclosure of material exculpatory or impeachment evidence in the government’s possession. – The Court confirmed Brady’s obligation does not extend to third parties outside the prosecution team.
Pennsylvania v. Ritchie (1987):
– Cross-examination and confrontation rights do not guarantee pretrial discovery of all potentially useful documents. – The Court used Ritchie to frame confrontation and compulsory-process rights as coextensive with due process discovery standards.
United States v. Cazorla (5th Cir. 2016):
– Held that § 1367 and its regulations bar disclosure by agencies bound by confidentiality provisions, even though § 1367 does not explicitly address third parties.
Demaj v. Sakaj (D. Conn. 2012), Commonwealth v. Riojas (Pa. Ct. Com. Pl. 2015):
– Held that forcing disclosure of U-Visa applications to criminal defendants undermines § 1367’s protective purpose.
New Mexico decisions on privilege and discovery:
– Brandenburg v. Blackmer (work-product), Wilson (superintending control), Pincheira (standard of review for discovery orders), and Boyse (constitutional interpretation de novo).

Legal Reasoning

The Court’s reasoning progressed along three axes:

Statutory and regulatory intent: Although § 1367 by its terms regulates federal employees, the underlying policy—protecting crime victims’ sensitive immigration data—counsels strongly for robust confidentiality. The Court concluded that an evidentiary privilege best effectuates those policies in the state-court context, preventing chilling effects on victim cooperation.
Constitutional limitations on discovery:
- Due Process (Brady): Only requires the prosecution to disclose material exculpatory or impeachment evidence in its possession. It does not impose a discovery duty on non-governmental third parties or require full-file disclosure when the materials are privileged or otherwise confidential.
- Compulsory Process and Confrontation: While defendants have the right to compulsory process and to confront adverse witnesses, those rights do not translate into an unlimited right to inspect all victim records. Instead, they entitle defendants to cross-examine victims about the fact of a U/T-Visa application and to present impeachment evidence, but not to demand privileged files.
Attorney-client privilege: NMILC’s client file containing E.M.’s T-Visa application consisted of core attorney-client communications. The Court held the privilege barred compelled disclosure absent a highly specific showing far beyond mere speculation or potential impeachment value.

Potential Impact

This decision will have sweeping effects in New Mexico and likely influence other jurisdictions grappling with similar issues:

Discovery practice in criminal cases: U-Visa and T-Visa applications will be treated as privileged documents statewide. Defense subpoenas for these materials must be quashed.
Evidence rule reform: The Court instructed the Rules of Evidence Committee to promulgate a specific rule creating a privilege for U/T-Visa applications, clarifying waiver provisions and scope.
Victim cooperation: By reinforcing confidentiality, the decision aims to prevent chilling effects on immigrant victims’ willingness to report crime and seek help.
Constitutional balance: The ruling preserves defendants’ rights to confrontation and fair trial while respecting victims’ privacy—offering a model for balancing these important interests.
Guidance for third-party custodians: Non-governmental agencies receiving U/T-Visa materials must refuse discovery demands and cite § 214.216(c) and any new state privilege.

Complex Concepts Simplified

U-Visa and T-Visa: Special nonimmigrant visas for victims of crime (U-Visas) or trafficking (T-Visas). They allow lawful residency—and eventual green cards—if applicants assist law enforcement or meet trauma-related eligibility.
8 U.S.C. § 1367: A federal statute forbidding certain officials from sharing U/T-Visa application data outside narrow law-enforcement exceptions.
Privilege: A legal shield preventing forced disclosure of certain confidential communications (here, U/T-Visa applications are now privileged).
Brady material: Evidence favorable to the defense that is “material” to guilt or punishment. The government must disclose such evidence only if it possesses it.
Confrontation Clause: Grants defendants the right to cross-examine those who testify against them—but not a blanket right to all victim records.

Conclusion

Ramirez v. Marsh represents a definitive state-court ruling that U-Visa and T-Visa applications of crime victims enjoy a privileged status in New Mexico criminal proceedings. By grounding its decision in the policies of federal confidentiality statutes, established discovery and privilege principles, and constitutional constraints, the Court has created a balanced framework. Defendants retain the ability to impeach victims by probing the fact of a U/T-Visa application, but may no longer compel release of sensitive application materials. This ruling secures victims’ privacy, encourages victim cooperation, and offers a clear directive for state evidence rule reform.