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Defense Attorneys Must Give Clear Advice On Possible Deportations, SJC Rules

BOSTON — Lawyers defending immigrants charged with crimes must be more clear when it comes to the immigration consequences of their cases, the Massachusetts Supreme Judicial Court ruled Monday.

The court’s decision says telling immigrants they could be “eligible for deportation” or “face deportation” if convicted is not correct legal advice when deportation is “practically inevitable.”

Elan DeJesus, of Boston, withdrew a guilty plea on a cocaine possession charge, saying that if he had known pleading guilty would lead to a deportation order, he would have gone to trial instead. (Asma Khalid/WBUR)

Elan DeJesus, of Boston, withdrew a guilty plea on a cocaine possession charge, saying that if he had known pleading guilty would lead to a deportation order, he would have gone to trial instead. (Asma Khalid/WBUR)

The ruling stems from the case of Elan DeJesus, a 3o-year-old legal permanent resident from the Dominican Republic who was arrested in 2009 and charged with trafficking cocaine. DeJesus says his lawyer said he could avoid jail time if he pleaded guilty to a slightly lesser offense — possession with intent to distribute — and that he didn’t know doing so meant he would be deported.

In the court’s decision, Justice Fernande Duffly wrote:

We conclude that advising a defendant faced with circumstances similar to those in this case that he is “eligible for deportation” does not adequately inform such a defendant that, if he were to plead guilty (e.g., as here, to a charge of possession with intent to distribute cocaine), then, upon apprehension, his removal from the United States would be presumptively mandatory under Federal law.

DeJesus will now get a new trial.

About one out of every six immigrants deported from New England last year was living in the country legally. They were permanent residents kicked out of the country primarily because of criminal convictions.

“This decision recognizes the importance of providing non-citizen defendants with complete and accurate advice about immigration consequences prior to deciding whether to plead guilty or go to trial,” said Wendy Wayne, director of the Immigration Impact Unit at the Massachusetts Committee for Public Counsel Services.

The court did not provide any prescriptive language as a guide. For now it seems defense attorneys will be held to a higher standard but left to navigate the murky world of immigration law with no specific guidance on what precise words to say.

Phil Torrey, who lectures on immigration law at Harvard Law School, said the court could not have offered a prescription because there is no magic formula — each case is unique.

“I think it’s clear that defense attorneys are going to have to say more than simply, ‘Oh, you’re not a citizen, you’re pleading guilty to a crime, there might be some immigration problems down the road,’” Torrey said. “You’re going to have to give particularized advice, and that advice is going to depend on who your client is.”

Torrey said the SJC decision was fair and potentially far-reaching, as no other state court has come to a similar decision.

Justice Robert Cordy wrote a dissenting opinion. He said the advice DeJesus received was sufficient, and demanding more from criminal defense attorneys essentially requires them to serve as immigration attorneys.

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