The Massachusetts S.J.C. recently upset the criminal defense community with a heightened requirement that criminal defense attorneys more clearly warn immigrants of the immigration consequences of convictions. See Commonwealth v. DeJesus, SJC-11392, slip op. (May 19, 2014).
Thirty-year-old legal permanent resident Elan DeJesus was charged with cocaine trafficking. He pleaded guilty to a lesser offense and received a sentence of probation instead of jail time. His defense attorney told him that pleading guilty would make him “eligible for deportation.” In fact, when Mr. DeJesus was later arrested for driving without a license, deportation was automatic or “presumptively mandatory” because of his previous aggravated felony conviction. Mr. DeJesus sought to withdraw his guilty plea. The courts allowed him a new trial, finding that he had not received effective assistance of counsel.
The S.J.C. found that Mr. DeJesus was not adequately advised of the immigration consequences of his guilty plea. Padilla v. Kentucky states that criminal defenders have a duty to advise their clients of immigration consequences. 559 U.S. 356, 374 (2010). Mr. DeJesus had been warned, but clearly not enough.
The court held 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.” Commonwealth v. DeJesus, SJC-11392; see also Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010).
The court declined to give specific guidance as to what warnings defense attorneys must give. It relied on Padilla’s holding that “the content of the advice would depend on the circumstances.” Id.
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