Guide Massachusetts law about immigration consequences of state convictions

A compilation of laws, regulations, cases, and web sources on the immigration consequences of state criminal convictions

Best bet

Immigration Consequences of Massachusetts Criminal Convictions, Committee for Public Counsel Services Immigration Impact Unit, 2015. 
Written for defense attorneys, this guide presents "the most conservative analysis of the ramifications of criminal conduct." Includes detailed information on grounds for deportation or inadmission, post-conviction relief, expungement and pardon, and helpful charts of crimes and immigration consequences. 

Massachusetts laws

MGL c.278, s.29D 
Court must advise defendants making a plea of guilty, plea of nolo contendre, or an admission to sufficient facts of potential immigration consequences

Federal laws

8 U.S.C. 1101 (a)(43) 
Definition of aggravated felony under 8 U.S.C. 1227 (a)(2)(A)(iii)

8 U.S.C. 1101 (a)(48) 
Definition of conviction and sentence

8 U.S.C. 1227 (a)(2)-(7) 
Grounds for deportation such as crimes of moral turpitude, aggravated felonies, failure to register as a sex offender, controlled substances convictions, firearms offenses, crimes of domestic violence, among others

Selected case law

Carachuri-Rosendo v. Holder  , 560 U.S. 563, 130 S.Ct. 2577 (2010)
Clarifies which drug offenses are considered aggravated felonies. See Committee for Public Counsel Services Practice Advisory

Mellouli v. Lynch , 575 U.S. ___, 135 S.Ct. 1980 (2015)  Possession of drugs, which may be a crime under state law, does not trigger removal unless the drug is listed on the federal drug schedules.

Moncrieffe v. Holder  , 569 U.S.184, 133 S.Ct. 1678 (2013)
Small amounts of marijuana. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

Padilla v. Kentucky  , 559 U.S. 356, 130 S.Ct. 1473 (2010)
Postconviction proceeding holding that an attorney provides ineffective assistance of counsel by failing to inform a noncitizen client that a guilty plea may result in deportation.

Commonwealth v. Clarke , 460 Mass. 30 (2011)
Postconviction proceeding holding that the decision in Padilla v. Kentucky applies retroactively to guilty pleas entered after April 1, 1997. Defendant must show counsel's ineffectiveness and resulting prejudice. Massachusetts does not follow the rule in Chaidez v. U.S. , 568 U.S. 342, 133 S.Ct. 1103 (2013) which holds that Padilla v. Kentucky does not apply retroactively.  See Commonwealth v. Sylvain, 466 Mass. 422 (2013) 

Commonwealth v. DeJesus , 468 Mass. 174 (2014) 
Defense attorneys must be very clear when explaining the potential consequences of a guilty plea and telling immigrants they could be “eligible for deportation” is not sufficient where deportation is a virtual certainty.

Commonwealth v. Gordon , 82 Mass. App. Ct. 389 (2012)
An evidentiary hearing is required where a defendant who pled guilty to charges including firearms offenses and assault and battery on a police officer (ABPO) moved for a new trial. The defendant alleges that he received ineffective assistance of counsel when he was not correctly informed of the consequence of the guilty plea to the ABPO charge.

Commonwealth v. Grannum , 457 Mass. 128 (2010)
Postconviction proceeding based upon violation of MGL c. 278, s. 29D. Defendant must show more than just a hypothetical risk of deportation. See Committee for Public Counsel Services Practice Advisory.

Commonwealth v. Nsubuga , 88 Mass. App. Ct. 788 (2015) 
Admission to sufficient facts."A District Court judge properly denied a criminal defendant's motion to withdraw his admission to sufficient facts to establish the crime of assault and battery where, at the time of the defendant's admission in 2004, the judge correctly provided the defendant, a legal resident alien, with the immigration warnings prescribed by the 1996 version of G. L. c. 278, § 29D, given that the 2004 amendment to the statute, requiring an explicit warning as to the immigration consequences of an admission to sufficient facts, had not taken effect." 

Matter of Corcino, 2007 WL 1430785 (2007) (unpublished decision of the Board of Immigration Appeals) Massachusetts "continuance without a finding" under MGL c. 278, s. 18, held to be a conviction under 8 U.S.C. 1101 (a)(48)

Web sources

A Bench Guide for State Trial Court Judges on the Immigration Consequences of State Court Criminal Actions,  Center for Public Policy Studies, 2009.

Grounds of Deportation for Criminal Conviction.  MassLegalHelp, produced by Political Asylum/Immigration Representation Project, November, 2009.
Information provided in question/answer format.

Immigration Consequences of Criminal Convictions . National Lawyers Guild, Massachusetts Chapter, Inc.
Eight page summary of portions of the changes to the Immigration and Nationality Act amendment of 1996, which relate to criminal charges and deportation.

Immigration Consequences of Criminal Proceedings, Lori Rosenberg, Daniel Kanstroom and Jennifer J. Smith, 2011.
Includes Legal Categories for People, Overview of the Effects of Criminal Proceedings, Specific Grounds of Inadmissibility Related to Crime, Specific Grounds of Removal Related to Crime, Possible Waivers and Other Forms of Relief, and Postconviction Measures Available to Defense Counsel

Post-Deportation Human Rights Project. Center for Human Rights and International Justice at Boston College
The Post-Deportation Human Rights Project offers a novel and multi-tiered approach to the problem of harsh and unlawful deportations from the United States. It is the first and only legal advocacy project in the country to systematically undertake the representation of individuals who have been deported from the United States. It has links to resources for attorneys, and for deportees and family members.

Committee for Public Counsel Service Immigration Impact Unit 
The CPCS Immigration Impact Unit is available to all CPCS staff attorneys and bar advocates for assistance on matters affecting noncitizen clients by providing training, post-conviction litigation support, and advice on minimizing adverse immigration consequences in individual cases. See also: Committee for Public Counsel Service Immigration Impact Unit - Links to Other Resources.

Crime and consequence: The Collateral Effects of Criminal Conduct , MCLE, 2013. Chapter 8: Immigration

Criminal/Immigration Law Training Conference . Mass. Bar Inst., 2012.
Includes Immigration consequences of criminal conduct - Ice custody, detainers, bail issues, immigration bond/mandatory immigration detention - Post-conviction relief - Forms of immigration relief and the role of criminal convictions.

From Criminal to Immigration Court: Immigration Consequences of Criminal Conduct , Massachusetts Bar Institute, 2010

Immigration Consequences of Criminal Activity: A guide to representing foreign-born defendants, American Immigration Lawyers Association, 2015.

Immigration, Criminal Defense and Civil Rights , MCLE, 2011

Immigration Law and Crimes , West, 2012 with supplement

Kurzban's Immigration Law Sourcebook, American Immigration Lawyers Association, 2016
Chapter 3: Admission and removal

Massachusetts Practice v. 30A (Criminal Practice and Procedure) , ThomsonWest, with supplement
Sections 24:71-24:74 Constitutional notice, Statutory warning

Massachusetts Practice v. 42 (Criminal Defense Motions) , ThomsonWest, with supplement
Sections 8:1-8:3 Collateral consequences

Last update: January 22, 2018

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