Via the Harvard Immigration and Refugee Clinic
By Joey Michalakes, 2014 Cleary Gottlieb Summer Fellow
This week, the Massachusetts Supreme Judicial Court (SJC) issued a decision that clarifies the type of legal advice that must be given to immigrant defendants in criminal proceedings. Commonwealth v. DeJesus involved a 30-year-old legal permanent resident charged with trafficking cocaine who pled guilty to the lesser charge of possession with intent to distribute in order to avoid jail time—a move he claimed he never would have made had he known it would render him presumptively removable under federal immigration law. DeJesus moved to withdraw his guilty plea and pursue a trial, arguing that the legal advice his attorney provided him—that a guilty plea would make him “eligible” for deportation—was insufficient.
The SJC agreed. Though its ruling did not prescribe the specific language defense attorneys representing clients in similar circumstances to DeJesus must use, it undoubtedly requires defense counsel to provide particularized immigration-related advice. Because the DeJesus decision is one of the first of its kind in a state supreme court, it could play an important role in shaping the national debate over the precise scope of a criminal lawyer’s duty to be aware of pertinent immigration laws.