Non-citizens have an absolute right to be advised properly regarding the immigration consequences of their pleas, and if they don’t, they can have their convictions vacated. It was not so long ago that the courts of Massachusetts and throughout the country said that the immigration consequences of a plea are a “collateral matter,” and that if a defense lawyer did not advise a client concerning the immigration consequences of a plea, that was the client’s problem.
Many years ago I had a case very similar to the fact pattern in the seminal case of Padilla v. Kentucky. My client had come to the United States at a very young age with his entire family. He was married to a Unites States citizen, working, supporting a family, and had drug distribution charges. His lawyer told him that he did not need to worry about the immigration consequences of pleading guilty because he had a U.S. Citizen wife and children. Of course, a drug distribution offense is an aggravated felony, and he was out of luck. He sought to vacate the plea, but unfortunately the government fought us tooth-and-nail. It was probably one of the longest oral arguments that this office has ever been involved in, because the State District Court Judge really wanted to vacate this plea. It was an obvious injustice. Frankly, he was trying to talk the state out of its opposition, but the government was adamant. Unfortunately, the government had the law completely on its side at that time.
In 2010, the United States Supreme Court decided the case of Padilla v. Kentucky. For the first time, a major court (in this case, the most major court of all) stated that deportation is something more than some ancillary matter that comes up when people plead guilty to crimes. For the first time, the Supreme Court held that where a criminal defense lawyer gives faulty advice, or fails to give any advice at all, concerning the immigration consequences of a plea, then that constitutes ineffective assistance of counsel, and the person facing deportation may have that plea vacated if they can also show that they would not have plead guilty had they have been given the proper advice. Unfortunately, the Supreme Court refused to make this decision retroactive. As a result, people who entered pleas before Padilla was decided were not afforded any protection from this decision.
Fortunately, the Padilla decision did open the door to vacating pleas in Massachusetts. Once Padilla was decided, I was able to use it to vacate some older convictions. I had one case in particular, where my client had an Order of Deportation on his head. He had been picked up by ICE for deportation, and ICE had his passport. All that was needed to remove him from the country was a plane ticket. Fortunately, it takes ICE about 2 weeks to get one of those. Miraculously, I was able to get his conviction vacated, and his order of deportation stayed before ICE sent him back to his home country. In kind of an interesting side-note, my client was talking to his girlfriend on the telephone when ICE came to the detention facility to take him to the airport. I received a phone call on a Sunday night telling me that they were deporting him notwithstanding that I had a Stay of Removal in place. Unfortunately, it is hard to find anyone at ICE to talk to on a Sunday night. Fortunately, I have a friend who works at ICE, and I was able to get a hold of him, and he sent a text message to my client’s deportation officer. He texted back that they may have his plane ticket, but he has my client’s passport in his desk drawer, and that my client was going nowhere. Sure enough, they took him to the South Bay facility, and then turned around and took him right back to Plymouth County.
Although I was winning these cases, it was not altogether clear that I had the law on my side. In fact, the Supreme Court would eventually make clear that I did not. Fortunately, the Massachusetts Supreme Judicial Court has spoken, in a case called Commonwealth v. Sylvain. Sylvain basically stated that the Supreme Court’s holding in Padilla is not only a matter of federal constitutional law, but state constitutional law as well. Basically, the failure to advise of the immigration consequences of a plea constitutes ineffective assistance of counsel in violation of the Massachusetts Declaration of Rights. More importantly, Sylvain makes this right retroactive to 1997.
Sylvain enabled me to win a recent case that the government also fought us on tooth-and-nail. In this case, my client has a very old conviction for an assault-and-battery. Regrettably, my client took a one-and-a-half year suspended sentence. His lawyer, understanding his charge to be a misdemeanor, figured, quite logically, that the plea could not be an aggravated felony. On top of that, the guy did not spend one day in jail, so how serious could it be? The answer, of course, is very serious. A suspended sentence of one year or more on any battery charge constitutes an aggravated felony, and my client wound up getting an Order of Deportation several years ago. He also hired a lawyer, pre-Padilla, to try to vacate that plea, and was unsuccessful, on the very grounds that immigration constitutes a collateral matter, and thus a plea could not be vacated simply because the lawyer had failed to advise him properly. I put the exact same issue before the exact same judge post-Sylvain, and won.
Much to my surprise, the government has threatened to appeal my victory. They threatened his prior lawyer to try to get her to say that she had properly advised him. They even attempted to retry him. Fortunately, they were unable to either locate or secure the cooperation of their “victim” so they were not able to retry him. The previous lawyer is not cooperating with the District Attorney’s Office either, nor should she be. More importantly though, after Dejesus, I do not believe that I will be hearing any further about getting “clarification” of the Sylvain decision. I put clarification in quotes because the District Attorney stated that she was going to appeal this specifically because she was losing too many of these cases and wanted further “clarification” from the Supreme Judicial Court.
In Dejesus, the Defendant was charged with an offense that carried a five (5) year minimum mandatory sentence. The government offered him a chance to plea to possession with intent to distribute cocaine. His lawyer advised him that he would be “eligible for deportation” if he pleaded guilty. The Commonwealth was offering probation. Dejesus took the plea.
Of course, possession with the intent to distribute cocaine is an aggravated felony. His deportation was automatic. This is a rare Appellant Court decision in that it did not deal with the issue of whether or not wrong advice is ineffective assistance, or if silence is ineffective assistance, but rather if advice that is not strong enough constitutes ineffective assistance. By stating that he would be “subject to deportation” it was implied that he might be able to beat deportation. However, as an aggravated felon, his deportation was automatic. The Supreme Judicial Court held that this advice by the attorney was “constitutionally deficient” and as such constituted ineffective assistance of counsel.
This is an interesting holding. It requires a fairly high level of knowledge of the Immigration Act by the defense lawyer, and it does “clarify”. There probably are a fair number of cases out there where a defense lawyer, not really knowing the immigration consequences, may have said simply something to the effect of “there may be immigration consequences” or as this lawyer said, you may be subject to deportation. It is nice to know that Defendant aliens that took these pleas based on such vague representations have the opportunity to get those pleas vacated.
However, I find the second half of Dejesus more interesting. It has never been enough to show simply that the lawyer’s advice was inadequate. It is also necessary to show that had the right advice been given, the outcome would have been different. That is to say, had Dejesus’ attorney told him that he would absolutely be deported, he would then have rejected the deal. In this case, Dejesus was facing a five (5) year minimum mandatory jail sentence. On top of that, having been told that he may be subject to deportation he had already accepted the deal. Now he is in court saying that had he have known that he would not merely be subject to deportation but would actually be deported, he would have risked the five (5) year minimum mandatory jail sentence. The Supreme Judicial Court held that deportation is such a special circumstance that it found that even on the facts of this case, Dejesus was entitled to vacate his plea and force the Commonwealth to try him years after the fact. The vast majority of cases involving ineffective assistance of counsel also involve a less draconian result than a five (5) year minimum mandatory sentence. The vast majority of ineffective assistance of counsel cases do not involve a warning even as effective as “you may be subject to deportation”. In most cases, the alien has been told that he will not be deported, or is unlikely to be deported or has not been told about deportation at all. In most cases, the alien is facing limited jail time if convicted. As such, by the Dejesus standard, most aliens bringing ineffective assistance claims in Massachusetts should be able to prove the second element that they were prejudiced by the bad advice and would not have accepted the plea.
By the way, there is every reason to believe that the Dejesus principles will work in the exact opposite situation. That is to say, where an alien turned down a plea in which he would not have faced deportation then went to trial and got a sentence rendering him deportable. In Massachusetts, a lawyer is required to advise an alien Defendant of the immigration risks of turning down a plea and going to trial. Imagine that if instead of being a drug distribution offense, this had been an assault and battery case. Imagine that the Commonwealth had offered probation or even a sentence of less than one year (365 days). Imagine that the lawyer advised the client that if he went to trial and the Judge sentenced him to a year (365 days) he would be subject to deportation when in fact being sentenced to a year (365 days) or more is an aggravated felony making deportation mandatory. It strikes me that the Supreme Judicial Court would find that that advice was constitutionally deficient and probably allow him to go back and accept the plea, especially if the plea was for probation or a suspended sentence of less than one year (365 days). There is a good chance that they would allow it even if the Commonwealth had offered up an actual sentence of up to three-hundred sixty-four (364) days.
I think Dejesus creates a whole new ball game where the ineffective assistance of counsel cases are concerned. If the District Attorney that I spoke with was unhappy about her won-loss record on these motions before Dejesus she is going to be very miserable in the future. This is a very broad decision which should allow all but the most extreme cases to be reopened if Defense counsel resulted in deportation from his plea or even his failure to plea. I would say to the District Attorney who actually took Dejesus to the Supreme Judicial Court who was no doubt was also seeking clarification of the law to be careful what you wish for. Sometimes you might get it.