Plea Vacated On Alleged Inadequate Investigation Of Immigration Status

The Massachusetts Supreme Judicial Court vacated an order denying a motion to withdraw a guilty plea in a drug case, finding that there was sufficient evidence of deficient inquiry into the immigration consequences of the plea

He now appeals from the order denying his motion to withdraw his guilty pleas based on plea counsel’s advice regarding immigration consequences, a matter complicated by the fact that, sixteen months after his plea, the defendant was granted protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which bars his deportation to Iraq so long as he remains likely to be subject to torture there. Concluding that, without an evidentiary hearing, the motion judge could not determine what plea counsel’s advice was and whether his performance was deficient and prejudicial, we vacate the order denying the defendant’s motion to withdraw his guilty pleas and remand for further proceedings.

The actual and potential for abuse/torture is set forth in the opinion. 

The defendant, along with his mother’s family, suspected that his father secretly worked for Saddam Hussein, who was then dictator of Iraq. When Hussein was removed from power in 2003 by a coalition of nations including the United States, the United Kingdom, Australia, and Poland, the defendant’s family began to receive threats from extremist groups. Following a brief relocation from their home in Baghdad, the defendant and his family returned to find bullet holes in their front door. Three of his siblings were kidnapped by extremists on separate occasions.

Although the defendant’s family moved around Baghdad and lived in a safe house suggested by the United Nations, the threats continued. Following his parents’ divorce, the defendant’s father was given custody of the defendant and his siblings. Because the defendant’s father continued to work for the United Nations, the family continued to be targeted by extremist groups

On the plea advice

Even if it is eventually determined that the defendant was not advised that deportation was virtually certain, the record does not reveal whether competent counsel would have given such advice. Although conviction of possession of heroin or cocaine with the intent to distribute would result in deportation for most defendants, see DeJesus, 468 Mass. at 180-181; 8 U.S.C. § 1101(a)(43)(B), the defendant here came to the United States as a refugee and had a colorable claim for deferral of removal under CAT, which he was ultimately granted in July 2018. Accordingly, with the benefit of hindsight, we know that it is not virtually certain that the defendant will be deported.

…To be sure, plea counsel also has a duty to make a reasonable inquiry into the defendant’s immigration status. “It is especially important that a criminal defense attorney learn whether his or her client was admitted into this country as a refugee.” Lavrinenko, 473 Mass. at 53. This is important because knowledge that a defendant was admitted as a refugee would lead counsel to conduct further research “to learn what
[counsel] need[s] to know to advise his [or her] client competently regarding the immigration consequences of a guilty plea.” Id. at 54. “Therefore, the failure of a criminal defense attorney to make a reasonable inquiry of the client regarding his or her citizenship and immigration status is sufficient to satisfy the deficient performance prong of the ineffective assistance analysis.” Id. at 53.

(Mike Frisch)