Opinion
No. 13–P–1282.
2014-06-23
COMMONWEALTH v. Wilfredo MARTINEZ.
Padilla v. Kentucky, 559 U.S. at 369. The defendant's submissions make no assertion that he was a legal permanent resident who is now being deported owing to his admissions rather than his lack of legal resident status. In that circumstance, we fail to discern how it would have been accurate to advise him that his admissions alone would lead directly to his deportation. See Commonwealth v. Marinho, 464 Mass. 115, 130 (2013) (“The reality of the defendant's status as an undocumented person living in the United States was that he was deportable per se on account of his unlawful status”). To the extent the defendant contends that counsel was ineffective in failing to advise him that his admissions would nevertheless render him ineligible for cancellation of removal, we disagree that such a failure was manifestly unreasonable under the circumstances. 4 At the time of his admissions in 1999 and 2000, the defendant had been a resident for less than the continuous ten-year period necessary to be eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(A) (2006). Given the defendant's temporal ineligibility for cancellation of removal, any failure of counsel to advise him that his admissions to crimes of domestic violence would also render him ineligible for cancellation of removal was not manifestly unreasonable. Indeed, to impose on defense counsel a duty to render such highly nuanced immigration advice would transform the requirement that a criminal defense attorney give correct immigration advice when deportation consequences are “truly clear” into a duty to do so even when the law is not “succinct and straightforward.” See Padilla, supra. Compare Commonwealth v. DeJesus, 468 Mass. 174 (2014).