Immigration issues continue to dominate the media spotlight as advocates and opponents alike anxiously await the House of Representatives decision to move forward with comprehensive immigration reform. While no new federal laws have been passed yet (and they won’t be until the members of the House can come to an agreement on what those laws should be), things have been changing in the immigration world, with more immigration-friendly policies being introduced at the state level and decisions made by the courts. These policies and decisions typically involve expanding or protecting immigrants’ rights.
One such policy was recently reaffirmed in Boston by the Massachusetts Supreme Judicial Court. Specifically, in the case before the court, the judges stated that lawyers who are defending accused criminals, who also happen to be foreign nationals, must be clearer when advising their clients about the possible immigration consequences of their cases. Specifically, the court’s decision tightens the requirements on the lawyers, and states that the lawyers cannot inform their clients that the clients may “face deportation” or may be “eligible for deportation” if in fact deportation is a near certain outcome in their case.
The Massachusetts Supreme Judicial Court case at issue was the case of Mr. Elan DeJesus who is a 30-year old lawful permanent resident of the United States (i.e. a green card holder) and native from the Dominican Republic. Mr. DeJesus withdrew his previous guilty plea for cocaine possession because, according to him, had he known that making the guilty plea would have resulted in his deportation he would have never made the plea in the first place and would have instead taken the case to trial.
In 2009, Mr. DeJesus was arrested and charged with cocaine trafficking. According to Mr. DeJesus, his lawyer at the time informed him that he could avoid going to jail if he pleaded guilty to the lesser offense of possession with the intent to distribute. However, Mr. DeJesus states that his lawyer did not warn him of the possible immigration-related repercussions of making such a plea.
Because of the attorney’s failure to inform him of these repercussions, Mr. DeJesus will receive a new trial.
Mr. DeJesus’s case is certainly not unique as Boston’s NPR news station reports that last year, one out of every six foreign nationals deported from the New England area was living in the country with legal immigration status.
The court’s decision in Mr. DeJesus’s case has been met with vigorous approval from immigrant-rights activists. Specifically, Ms. Wendy Wayne, director of the Immigration Impact Unit for the Massachusetts Committee for Public Counsel Services, stated that the 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.”
While this decision is good news for foreign nationals, it may mean bad news for criminal defense attorneys. The judge did not provide specific language or guidelines that attorneys can use to ensure that they are meeting their obligations to inform foreign nationals of the potential deportation consequences of their criminal cases (and attorneys have to do their jobs well or they could get in trouble with their state bar association and possibly have their law licenses suspended or even revoked).
Although the absence of guidelines may be disappointing to some criminal attorneys – especially those whose practices do not involve a lot of immigration-related work – Mr. Phil Torrey, an immigration law professor at Harvard law School, states that it would not have been possible for the court to offer any guidelines because of the unique and fact-specific nature of each case.
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. Rather than providing specific scripts for the attorneys to follow, the court has simply raised the bar for the level of professional attention and care that the attorneys must give to the immigration aspects of a case.
Of course, just like with most cases, there are detractors who do not agree with the court’s decision. Justice Robert Cordy dissented from the ruling opinion and stated that demanding that criminal defense attorneys provide specialized and personalized immigration advice would essentially require them to serve as immigration attorneys.