Immigration consequences of Massachusetts criminal convictions, Committee for Public Counsel Services Immigration Impact Unit, May 2018.
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.
MGL c.278, § 29D
Court must tell defendants making a plea of guilty, plea of nolo contendere, or an admission to sufficient facts about potential immigration consequences of their decision.
Massachusetts court rules
Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b) & 12 (d) (3) (A) (iii) (b) Judge shall provide specific notice to defendant of consequences of plea
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
Comm. v. Petit-Homme, 482 Mass. 775 (2019)
" we urge judges to ensure that both the statutory immigration warning, preferably read precisely as quoted in G. L. c. 278, § 29D, and the rule (b) warning [Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b) & 12 (d) (3) (A) (iii) (b)] are delivered at every colloquy, as expressly directed by both rule and statute."
Lopez v. Gonzales, 549 US 47 (2006)
Legal residents can only be deported under the Immigration and Nationality Act for acts that are felonies under the Controlled Substance Act, and not merely felonies under state law.
Mellouli v. Lynch, 575 U.S. 798, 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.
Comm. 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.
Comm. v. Lopez, 96 Mass. App. Ct. 34 (2019)
A defendant was not entitled to have a guilty plea vacated just because he "regrets his decision now that the warned of deportation has come to pass."
Comm. 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, § 18, held to be a conviction under 8 U.S.C. § 1101 (a)(48)
Stokeling v. United States, 586 U.S. __, 139 S.Ct. 544 (2019)
The Supreme Court found that Florida robbery is a crime of violence under the ACCA, because the confrontation involved in “overcoming the resistance of the victim” in a robbery is inherently violent, even if the force used is minor.
A bench guide for state trial court judges on the immigration consequences of state court criminal actions, Center for Public Policy Studies, 2009.
This guide helps state trial court judges identify cases before them that might have immigration consequences, before they accept a guilty plea or impose a sentence.
Grounds of deportation for criminal conviction. MassLegalHelp, produced by Political Asylum/Immigration Representation Project, November, 2009.
Provides information on deportation and criminal convictions in a clear question and answer format.
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.
Crimmigration 101, MCLE, 2017.
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
Immigration practice manual, MCLE, looseleaf, 2017-
Chapter 19: Consequences of criminal convictions for noncitizens; Chapter 20: Relief from removal & immigration court procedures.
Kurzban's immigration law sourcebook, American Immigration Lawyers Association, 2018
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
Removal defense, Immigration Legal Resource Center, 2017.
|Last updated:||September 8, 2021|