During the height of the COVID-19 pandemic, I filed a Padilla motion for a client of mine in immigration proceedings. At the time, the courts were basically dysfunctional, my client’s hearing was years away, and I also wanted to have a conversation with an Assistant District Attorney about the case, so I did not mark up the motion. I merely filed it. This motion was extremely important because if I win it, there is no grounds for deporting my client, but if I do not win it, it is impossible to keep him in the country.
A Padilla motion is a very powerful tool in Massachusetts for people who are not US citizens and have been convicted of crimes which may render them deportable. The US Supreme Court, in Padilla v. Kentucky, determined that a criminal defense lawyer has an absolute duty to advise a non-citizen criminal defendant of the immigration consequences of any plea that they may enter. If the lawyer did not properly advise the client about the immigration consequences, then it might be possible to get the conviction vacated. I have successfully filed several Padilla motions over the years, and I have several clients happily living in the United States who otherwise would have been deported. In Massachusetts, our Supreme Judicial Court has dramatically expanded the boundaries of Padilla and made it even more effective. For example, the Supreme Court did not make Padilla retroactive, and thus it is only good for convictions after the date of Padilla, in early 2010. Massachusetts has made it retroactive to April 1, 1997. In addition, Massachusetts requires that the lawyer also advise of the immigration consequences of going to trial. Massachusetts is also very firm on what the duties of a lawyer are and is very expansive concerning the circumstances under which a criminal alien might be able to vacate a conviction if the lawyer did not meet that duty. For example, “you may be subject to deportation” when the crime is an aggravated felony, which makes deportation essentially automatic, is insufficient. Similarly, in Massachusetts, a criminal alien without much of a defense and without the possibility of a plea deal that would mitigate the immigration consequence might, nevertheless, get a conviction vacated if they have sufficient “special circumstances” that they might be willing to trade almost-certain jail time in the event of a conviction for getting to stay in the country in the unlikely event of a victory.
In this case, the conviction is roughly 20 years old, and the criminal defense lawyer acknowledges that she was not aware of how severe the immigration consequence for this plea deal were, and thus did not warn him. What is more, she was adamant that had she been aware of the immigration consequence, she would not have allowed the client to accept that plea. Either he would need to try the case or find a new attorney. She signed an affidavit to this effect. Similarly, my client signed an affidavit indicating that he had not been warned, and had he had been, he would have heeded his lawyer’s advice and gone on to trial. As such, it was a motion that I felt pretty good about. However, you never know what the state has in their files, and of course you never know what a judge is going to do. Needless to say, Assistant District Attorneys, and even trial judges, are not particularly enthusiastic about reopening old convictions.
Several months ago, I started trying to mark up this motion. I sent all kinds of letters and made all kinds of phone calls, and everyone was ignoring me. All I needed was to get an ADA to talk to me about a date, and of course I wanted to go over the motion before the hearing, just to see if there would be a way to sweet-talk my way into a good outcome. No one returned my calls. No one responded to my letters. We reached out again to the clerk’s office to see if we could at least just mark it up and force the District Attorney’s office to deal with this, one way or the other. In this conversation, we learned that the court held a hearing, but did not notify me of it. Apparently, the court’s records were not updated to reflect that I am the new attorney on the case. What is more, at that hearing, the district attorney opted not to defend the Padilla motion, but instead dismissed the case. Although it was not intentional, I won the case without even going to the hearing.