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Massachusetts Law About Immigration Consequences of State Convictions

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 Cases

Carachuri-Rosendo v. Holder, 560 U.S. 379, 130 S.Ct. 2577 (2010). Clarifies which drug offenses are considered aggravated felonies. See Committee for Public Counsel Services Practice Advisory

Moncrieffe v. Holder, 569 U.S. __ (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. See Committee for Public Counsel Services Practice Advisory.

Commonwealth v. DeJesus, 468 Mass. 174 (2014). New! 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.

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).

Other Web Sources

Immigration Consequences of Criminal Activity, Congressional Research Service, October, 2006. "This report discusses the potential immigration consequences of criminal activity. “Criminal activity” generally refers to conduct for which an alien has been found or plead guilty before a court of law, though in limited circumstances consequences may attach to the commission of a crime or admission of acts constituting the essential elements of a crime. Consequences may flow from violations of either federal, state or, in many circumstances, foreign criminal law." Note: None of the proposed bills detailed in the section on "Recent Legislative Developments" were enacted.

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.

Selected Immigration Consequences of Certain Massachusetts Offenses. National Immigration Project of the National Lawyers Guild. Chart which analyzes the potential deportability that may flow from conviction of selected Massachusetts offenses with some suggestions about how to reduce the likelihood of the potential consequences.

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.

Print Sources

A Bench Guide for State Trial Court Judges on the Immigration Consequences of State Court Criminal Actions, Center for Public Policy Studies, 2010.

Challenging the Immigration Consequences of Crimes, Center for Advanced Legal Studies, Suffolk University Law School, 2006.

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, 2009.

Immigration, Criminal Defense and Civil Rights, MCLE, 2011. Also available as an audio CD.

Immigration Law and Crimes, West, 1984 with supplement.

Kurzban's Immigration Law Sourcebook, 12th ed., American Immigration Council, 2010. Chapter 3: Admission and removal.

Massachusetts Practice v. 30A (Criminal Practice and Procedure), 3rd ed., ThomsonWest, 2007 with supplement. Sections 23.60-23.62: Statutory warning.

Massachusetts Practice v. 42 (Criminal Defense Motions), 3rd ed., ThomsonWest, 2003 with supplement. Sections 8.8-8.10: Immigration and Sample Post-Conviction Motions.