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SJC Rules that Non-Citizen Defendant’s Motion for a New Trial Should be Granted

passport-1519050Last month, the Supreme Judicial Court issued a decision addressing judicial notice of immigration consequences to non-citizens who plead guilty to a criminal case. The case – Commonwealth v. Valdez – reverses the denial of the defendant’s motion for a new trial where the judge who conducted the defendant’s plea colloquy had failed to advise the defendant, as required by G. L. c. 278, §29D, “that conviction may have the consequence of exclusion from admission to the United States.” In so ruling, the SJC (1) clarified “what [a] defendant must show to establish that his conviction ‘may have’ the consequence of exclusion from admission to the United States”; and (2) determined that the defendant here had met that burden.

The background was as follows. “The defendant was born in the Dominican Republic and is a citizen of that country. In 1985, he was admitted to the United States as a lawful permanent resident alien.” In 1989, he pleaded guilty to an indictment alleging larceny of a motor vehicle and was sentenced to a prison term of five years at MCI-Concord. “The defendant is now a resident of Connecticut and owns his own business selling automobiles. Since 1997, he has been in a relationship with a citizen of the United States, with whom he has three children. No immigration proceedings have been commenced against the defendant by Federal authorities.” In 2013, the defendant — wishing to travel to the Dominican Republic and fearing that he might not be able to reenter the United States — retained an immigration attorney. On the basis of the attorney’s advice that the defendant’s conviction would result in removal proceedings against him if he were to leave the United States and then seek to reenter, the defendant moved to withdraw his guilty plea and vacate his conviction. His motion was predicated on the judge’s acceptance of his plea without having advised him that his conviction “may have [the] consequence[] of … exclusion from admission to the United States,” as required by c.278, §29D. The motion judge agreed that the defendant had not been adequately advised in his plea colloquy, but “nonetheless denied the motion because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010), she found that the defendant ‘ha[d] not established that he would be subject to an express written policy of exclusion should he choose to leave the United States and desire to re-enter,’ and therefore ‘ha[d] shown no more than a hypothetical risk’ of exclusion.”

In its decision reversing the denial of the defendant’s motion, the SJC stated that “where a defendant has not received the required exclusion from admission warning under §29D, he or she satisfies the burden of showing that his or her conviction ‘may have’ the consequence of exclusion from admission to the United States by showing (1) that he has a bona fide desire to leave the country and reenter, and (2) that, if the defendant were to do so, there would be a substantial risk that he or she would be excluded from admission under Federal immigration law because of his or her conviction.” The Court then concluded “that the defendant ha[d] satisfied both requirements for relief.” The Court opined that, contrary to the judge’s conclusion, “exclusion from admission [was] far more than a hypothetical risk if the defendant were to leave the United States.” The Court explained that “[t]o ensure that all noncitizens who are not eligible for admission because of prior criminal convictions are identified at the time of inspection [at a port of entry into this country], United States Customs and Border Protection … obtains identifying information for all individuals arriving by sea or air from outside the United States prior to arrival … and screens that information against a variety of law enforcement databases, including the National Crime Information Center…. At the time of inspection, if the examining officer determines that the noncitizen seeking admission ‘is not clearly and beyond a doubt entitled to be admitted, [he or she] shall be detained for [removal proceedings].’ 8 U.S.C. §1225(b)(2)(A) (2012).” The burden of proof in such proceedings is on the noncitizen. “Under these circumstances,” stated the Court, “it is virtually inevitable that an individual who is ineligible for admission based on a criminal conviction” will, upon arrival, be “ordered removed by an immigration judge.” In the Court’s view, there is a substantial risk that if the defendant were to seek reentry into the United States, he would be deemed ineligible for admission on the grounds that his larceny of a motor vehicle (1) was a crime ‘involving moral turpitude’ (8 U.S.C. §1182[a][2]); and (2) was an aggravated felony because it [was] a ‘theft offense’ for which [the defendant] was imprisoned for more than one year. See 8 U.S.C. §1101(a)(43)(G).”

Although the potential consequences of a criminal conviction are significant for any person, such consequences may be especially dire for non-citizens. It is of the utmost importance that any non-citizen charged with a criminal case know the potential consequences of a plea, and that all safeguards put in place to protect a non-citizen defendant from unknowingly putting himself at risk for deportation be closely guarded. Attorney Daniel Cappetta has significant experience representing both citizen and non-citizen clients in criminal matters. He makes sure that all of his clients are fully informed and in the position to make the best decision possible for the case. If you or a loved one is charged with a criminal case that may have immigration implications, call Attorney Cappetta today for a thorough evaluation of your case.

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