Opinion
19-P-1264
06-30-2020
COMMONWEALTH v. MARCOS V. SILVA FEIJAO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 22, 2016, the defendant pleaded guilty to possession of a class B substance in violation of G. L. c. 94C, § 34. On April 4, 2019, the defendant moved to withdraw his plea and requested an evidentiary hearing based on a claim of ineffective assistance of counsel: he contended that plea counsel failed to properly advise him that his guilty plea would nullify his prior efforts to obtain lawful permanent residence status and result in his mandatory deportation. A Superior Court judge who was not the plea judge denied the motion without a hearing, concluding that the defendant failed to make a showing that plea counsel's performance was deficient. The defendant appeals. We vacate the order denying the defendant's motion and remand for an evidentiary hearing.
Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "We review 'the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.'" Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015).
To prevail on a motion to withdraw a plea for ineffective assistance of counsel, "the defendant bears the burden of showing that his attorney's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that he suffered prejudice because of his attorney's unprofessional errors." Lavrinenko, 473 Mass. at 51, quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). "Thus, a defendant must prove both deficient performance and prejudice." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).
The defendant argues that plea counsel's performance was deficient because he did not provide adequate advice regarding the immigration consequences of his guilty plea. The defendant acknowledges that plea counsel informed him that his plea to possession of a class B substance would be "grounds for deportation." Plea counsel also showed the defendant a chart, prepared by the Committee for Public Counsel Services, listing the immigration consequences associated with convictions of various crimes. With respect to G. L. c. 94C, § 34, the chart stated, "Inadmissible and deportable offense as crime related to a controlled substance. 8 U.S.C. § 1182(a)(2)(A); 8 U.S.C. § 1227(a)(2)(B)." The defendant signed the chart, indicating he had read it. During the plea colloquy, the defendant acknowledged that he was aware his plea of guilty "could" result in deportation.
The defendant contended that plea counsel's advice was inadequate, however, because it failed to take into account the particulars of the defendant's immigration status. Specifically, the defendant had entered the United States illegally as a child and had never obtained permanent resident status. In 2012, the defendant obtained immigration counsel and applied for Deferred Action for Childhood Arrivals (DACA). His immigration counsel also assisted him in attempting to adjust his status to lawful permanent resident based on his marriage to a United States citizen. The defendant states that he was about to complete the process of adjusting his status when he was arrested on the drug charges at issue in this appeal. Plea counsel informed him that a conviction "could cause immigration issues and make [him] deportable," but stated that "he was not an immigration lawyer and that he didn't want to give [the defendant] bad advice." Plea counsel knew that the defendant had immigration counsel and, during the plea colloquy, the defendant acknowledged that plea counsel had spoken with immigration counsel. Upon further inquiry from the plea judge, plea counsel confirmed that he and immigration counsel had discussed the matter.
DACA allows for individuals who arrived to the United States as children, pose a low risk to the country, and contribute to the United States to defer removal. The program shields the applicant from deportation for two years and is subject to renewal. See Department of Homeland Security v. Regents of the Univ. of California, ___ S. Ct. ___, No. 18-587 slip op. at 2-3 (June 18, 2020).
In DeJesus, 468 Mass. at 175, the defendant pleaded guilty to possession of a class B controlled substance with intent to distribute, in violation of G. L. c. 94C, § 32A (a). The crime was an "aggravated felony" under Federal immigration law, which in effect made his deportation mandatory. See DeJesus, supra at 181-182. Counsel informed the defendant that pleading guilty would make him "eligible for deportation," but failed to inform him that it would make his deportation certain, as "there would be virtually no avenue for discretionary relief." Id. at 182. Merely advising a defendant "that he is 'eligible for deportation' does not adequately inform such a defendant that, if he were to plead guilty . . ., then, upon apprehension, his removal from the United States would be presumptively mandatory under Federal law." Id. at 179. Accordingly, the advice "fell below an objective standard of reasonableness." Id. at 182.
The motion judge distinguished DeJesus, correctly noting that "the exact terms referenced in DeJesus are not per se applicable in this case" because the defendant there pleaded guilty to the more serious crime of possession with intent to distribute. It is true that the defendant's plea here to mere possession of a class B substance did not make him an "aggravated felon." However, the motion judge, and possibly plea counsel, failed to take into account that the defendant in DeJesus was a lawful permanent resident of the United States, whereas the defendant here was not. The difference in the defendant's status is significant in terms of the consequences of the plea and the adequacy of counsel's advice.
Criminal defense attorneys are obligated to inquire into the specific immigration status of their clients and how that status affects the consequences of a guilty plea. "Without making a reasonable inquiry of the client's immigration status, defense counsel is not in an adequate position to determine what advice is 'available.' . . . Therefore, the failure of a criminal defense attorney to make a reasonable inquiry of the client regarding his or her citizenship and immigration status is sufficient to satisfy the deficient performance prong of the ineffective assistance analysis." Lavrinenko, 473 Mass. at 53 (performance deficient where counsel failed to learn defendant's status as refugee).
The defendant argues that, because of his status as a nonpermanent resident, his plea rendered him ineligible for nearly all forms of relief from deportation. His plea to possession of a class B substance in violation of G. L. c. 94C, § 34, made him "inadmissible" under 8 U.S.C. § 1182(a)(2)(A)(II) (2012), and "deportable" under 8 U.S.C. § 1227(a)(2)(B) (2018). Typically, noncitizens who are inadmissible or deportable under these statutes may avoid deportation by petitioning the Attorney General for certain forms of discretionary relief. When noncitizens are inadmissible or deportable for a violation relating to a controlled substance and are nonpermanent residents, however, they are barred from such relief by 8 U.S.C. § 1229b(b)(1)(C) (2008). See Guerrero-Roque v. Lynch, 845 F.3d 940, 943 (9th Cir. 2017) ("The grounds for waiver of both inadmissibility and deportability are limited in their application and may not be used to waive a conviction that bars relief under [8 U.S.C. § 1229b(b)]"). At least on the limited record before us, however, it is unclear how this law was applied in practice in 2016. The defendant reports that an immigration officer visited him in the house of correction and informed him that he "was probably going to be ok" and that immigration authorities made no effort to take him into custody when he completed his sentence.
Relevant here, 8 U.S.C. § 1229b(b)(1)(C) states that a noncitizen may obtain cancellation of removal if, among other requirements, the person "has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title" (emphasis added).
The defendant's motion indicates that plea counsel understood at least that his client was a noncitizen and, accordingly, informed him that his plea was "grounds for deportation." However, the defendant's motion and supporting materials raise a substantial question concerning whether plea counsel made any inquiry into his client's particular immigration status as nonpermanent resident and how that status affected the availability of relief from deportation. See Clarke, 460 Mass. at 45-46 ("National and Massachusetts performance guidelines require criminal defense counsel to interview a defendant and gather significant personal information in order to represent him"). If plea counsel had made reasonable inquiry, the defendant contends, he would have realized and advised the defendant that pleading guilty would have made deportation "practically inevitable." DeJesus, 468 Mass. at 181.
Likewise, the CPCS chart informed the defendant that his plea made him inadmissible and deportable, but it did not explain that due to his status as a nonpermanent resident, he was barred from applying for nearly all forms of discretionary relief from deportation.
We recognize that the immigration consequences of a guilty plea to possession of a controlled substance for a nonpermanent resident may not be as straightforward as the consequences of a guilty plea to an aggravated felony. "When the law is not succinct and straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. . . . But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." Padilla v. Kentucky, 559 U.S. 356, 369 (2010). "Central to the Court's decision [in Padilla] was its reference to the professional standards of the legal community." Clarke, 460 Mass. at 45. The defendant raises a "substantial issue" whether an ordinary fallible lawyer would have done more than show his client a chart and defer to immigration counsel; accordingly, an evidentiary hearing is necessary. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550 (2014). Specifically, an evidentiary basis is necessary to determine what inquiry defense counsel made into the defendant's immigration status and how his particular status would be affected by a guilty plea, and whether that inquiry and the advice counsel gave were consistent with professional norms. See Clarke, 460 Mass. at 46; Commonwealth v. Henry, 88 Mass. App. Ct. 446, 453-454 & n.9 (2015).
If the judge on remand determines that an ordinary fallible lawyer would have informed the defendant that a guilty plea to possession of a class B substance would make his deportation mandatory, then the judge must also determine whether the defendant was prejudiced by counsel's failure to provide adequate advice. "In the plea context, this requires the defendant to establish that 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Henry, 88 Mass. App. Ct. at 455, quoting Clarke, 460 Mass. at 47.
Conclusion. The order denying the defendant's motion to withdraw his guilty plea is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Massing, Shin & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 30, 2020.