A rape suspect couldn’t bring up the victim’s visa application at trial. Now he can.

Jurors in the trial of a Lakewood rape suspect should have been able to consider that the victim sought an immigration visa related to the case, the Washington State Court of Appeals said.

Because they didn’t, Leonel Romero-Ochoa will get a new trial, and that this time evidence that the victim had applied for a visa can’t be excluded.

Romero-Ochoa, 36, got 30 years to life in prison for the July 2014 attack, which means the state’s Indeterminate Sentence Review Board would have decided when or if he was released.

But the Dec. 28 decision by a three-judge panel from Division II reversed his convictions for two counts of first-degree rape, one count of first-degree burglary and one count of second-degree assault.

That means Ochoa gets a new trial, and that this time evidence that the victim had applied for a visa can’t be excluded.

The special status the victim applied for, called a U-visa, lets victims of certain crimes stay in the United States legally for four years, and recipients eventually can become lawful permanent residents.

“A jury could infer that the requirements of receiving a U-visa, particularly the requirement of providing helpful assistance in a criminal investigation, and the value of receiving permanent legal resident status through the U-visa program supplied a motive for (the woman) to fabricate or embellish the allegations against Ochoa,” appellate Judge Thomas Bjorgen wrote in the opinion, which judges Rich Melnick and Lisa Sutton also signed.

Ochoa argued that he and the woman had previously been in a relationship for several years, and that the sex during the alleged rape was consensual. He said she became angry and hysterical when he ended the act, according to court records.

The 26-year-old woman denied she’d had a relationship with him, and gave this account of the attack, according to court records:

She woke up in the mobile home park in the 5000 block of San Francisco Avenue where she lived, and found a man standing over her.

She told investigators she didn’t know him, but thought he’d been staying with his brother nearby. She asked the intruder what he was doing, and he told her to be quiet.

She ran for the front door, and he grabbed her by the hair in the living room — while her 5-year-old daughter was in the home.

Ochoa hit the woman in the face and raped and choked her before she managed to run outside and scream for help. He pulled her back into the mobile home, where he kept assaulting her until police arrived.

A doctor who evaluated the woman found scratches and bruises across her body.

Pierce County Superior Court Judge Stanley Rumbaugh excluded information about the woman’s visa application from the trial in 2015.

“I think once you start bringing in the issue of immigration status, it becomes a very slippery slope,” he said, according to court records.

“... I believe that bringing up immigration and going into the status of any of the people that are going to be testifying in this case is going to inflame one way or another the jury so that their view of the case is going to be driven not by the evidence, but by their personal views about immigration and immigration policy and what should or shouldn’t happen to those who are in this country without proper documentation.”

Ochoa argued in his appeal that Rumbaugh’s ruling violated his constitutional right to present a defense and confront witnesses, per the Sixth Amendment.

The Court of Appeals agreed, but noted the trial court could limit the scope or extent of the evidence about the visa application, and cross-examination about it.

The opinion also said the error was not enough to reverse one of Ochoa’s convictions in the case, for unlawful imprisonment; Neighbors corroborated the woman’s account that Ochoa dragged her back into the home.

Ochoa’s attorney did not return a News Tribune call for comment.

Prosecutor Mark Lindquist said Wednesday his office will ask the Court of Appeals to reconsider its opinion.

“The U-Visa program was designed to encourage immigrants to report crime and cooperate with the criminal justice system, which makes our community safer,” Lindquist said via email. “We are concerned that this decision undermines that goal.”

Victims should not be discouraged from pursuing U-visas in light of the ruling, said Jorge Baron, executive director of the Northwest Immigrant Rights Project.

Asked about potential implications of the appellate decision, he noted the opinion is unpublished — meaning it relates only to this case — and can’t be cited as precedent.

Baron also pointed out that the the state Supreme Court recently passed a new rule that takes effect in September and addresses when evidence about someone’s immigration status can be submitted at trial and when it can’t.

“I think if it wasn’t for the rule, I think there may be more concern,” he said, though he added that it won’t apply to Ochoa’s case.

The new rule says evidence about immigration status isn’t admissible, unless the information is essential — such as to prove an element of the crime, or a defense to it.

Baron believes the rule balances defendants’ rights to present a full defense with concerns that immigration information might prejudice jurors.

“I think this decision by the court is also trying to strike that balance, specific to this case,” he said about Ochoa’s appeal.

This story was originally published January 4, 2018 at 8:00 AM with the headline "A rape suspect couldn’t bring up the victim’s visa application at trial. Now he can.."