Massachusetts Criminal Defense Lawyer Blog

As a Massachusetts criminal lawyer, reports have surfaced that probation departments are reporting to ICE, Immigration and Custom Enforcement, that a defendant is a noncitizen when conducting probation intake interviews. Anyone charged with a criminal case must report to probation so that probation can determine if the person appearing in court is the same as named in the criminal charge and determine eligibility for appointment of counsel.

A defendant's citizenship status is irrelevant to any criminal charges before the court and should not be asked by the probation department as it violates SJC Rule 3:10, §9. Additionally, a defendant should not answer any questions regarding immigration status. Since immigration status is irrelevant during a probation interview, and is also inappropriate for the court to ask during a plea hearing, Massachusetts criminal attorneys should instruct their clients not to respond to this line of questioning as it would violate the Fifth Amendment privilege against self-incrimination.

The Massachusetts Supreme Judicial Court, in the case of Commonwealth v. Kevin Grannum, ruled that a defendant could not have his plea vacated as a result of the failure of the judge to provide the defendant with the immigration warning required by the Massachusetts law, Chapter 278 Section 29D, because the defendant could not show that his plea was going to have the consequence of deportation, exclusion of admission into the United States or denial of naturalization.

The court held that a defendant attempting to withdraw a plea based on the failure of the judge to provide the immigration warning must show more than a hypothetical consequence that could result from his plea. The court found that the defendant must prove a nexus between the defective warning and the immigration consequence that the defendant is going to suffer.

In Grannum, the defendant argued that his admission to a continuance without a finding formed a statutory basis for deportation. The SJC held that a defendant must go beyond this showing and demonstrate that he was taken into custody by federal authorities, that he is currently in deportation proceedings, that he has been notified by immigration authorities of pending immigration proceedings or that federal immigration policy calls for the deportation proceeding to be initiated.

As a Massachusetts criminal defense lawyer, the court's decision underscores the importance of avoiding criminal convictions for noncitizens. Additionally, the court's decision creates a practical problem in challenging defective pleas as a defendant would already be involved in immigration proceedings before being able to obtain relief in the Massachusetts courts by way having a criminal defense lawyer file a motion to vacate a plea.

The United States Supreme Court has ruled that criminal defense attorney, in Massachusetts and throughout the United States must advise defendants of the immigration consequences of criminal convictions. Failure to do so, the court noted, deprives the defendant of effective assistance of counsel as guaranteed under the Sixth Amendment to the United States Constitution. The United States Supreme Court's holding arose from the case of Jose Padilla v. Kentucky.

Jose Padilla was a lawful permanent resident of the United States for more than 40 years. Padilla entered a guilty plea to transporting a large amount of marijuana. Padilla's attorney informed him that there would be no immigration consequences to his plea which was incorrect advice as federal immigration law clearly indicated that Padilla was pleading guilty to an offense that could result in deportation.

In an opinion written by now retired Justice Stevens, the United States Supreme Court held that Padilla did not receive effective assistance of counsel as a result of his attorney failing to properly advise him of the immigration consequences of his plea. Padilla's case presented in easy case for the majority of the court as the immigration consequences were clear and the attorney's advice was wrong. The court noted that in many cases the immigration consequences will be uncertain and in those cases, a criminal defense lawyer will only have to explain that the plea may have immigration consequences. However, the court underscored that if the immigration consequences of the plea are clear then a criminal defense lawyer has a duty to provide correct advice regarding immigration consequences.