There is almost nothing “succinct, clear, and explicit” about U. S. Immigration law.
Yet the Appeals Court seems to believe that every criminal defense attorney in the state should have a firm grasp on this highly specialized area of federal law.
Here’s the most recent example.
A man from the Dominican Republic was arrested in 2006.
The police claim that the man was the sole occupant in a car which had 60.77 grams of cocaine in its center console.
This far exceeds the 18.5-gram threshold needed to charge someone with felony drug trafficking.
In 2007 the Commonwealth reduced to the charge to misdemeanor possession of a class b drug.
The man pleaded guilty to the charge and received nine months of probation.
Prior to the plea, the judge advised the man that the conviction could result in deportation.
Additionally, the man signed a waiver/acknowledgement which likewise stated that deportation could result from the plea.
In 2019, the man traveled to the Dominican Republic.
When he returned, authorities at Logan Airport saw the conviction on his criminal record and denied his entry into the U.S.
He now faces deportation.
He filed a motion to vacate his 2007 plea, claiming that he received ineffective assistance of counsel.
In the affidavit which accompanied the motion, the man claims that his attorney said there would be no immigration problems because the term of probation was less than one year.
(The attorney passed away at some point after the 2007 plea and before the 2023 motion.)
A superior court judge denied the motion, saying that he did not find the affidavit credible and noting that the man was advised of deportation consequences both in writing and on the record before the plea.
The decision was appealed and the Appeals Court reversed the decision.
Under federal law,
a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
Citing the U.S. Supreme Court in Padilla v. Kentucky, the Appeals Court found that
The immigration consequences of a conviction under [the federal law] are “succinct, clear, and explicit” such that it “could easily be determined from reading the removal statute” that “deportation was presumptively mandatory.”
Thus, assuming the plea attorney actually gave bogus immigration advice, the man receive ineffective assistant of counsel and his motion to vacate the plea should have been allow.
To read the full slip opinion, click the document below.