Immigration Law Newsletter
November 2012
Immigrants and the DPH Drug Lab Scandal
The DPH drug lab scandal has impacted many of our immigrant
clients. If you believe you may have a client who could obtain
immigration relief as a result of the issues at the DPH drug lab
you should contact your client and see if they would like to pursue
relief based on the problems at the lab.
If after meeting with your client you make the decision to
pursue relief, the first thing you should investigate is whether or
not the drugs were analyzed at the DPH Hinton Lab. If so, you most
likely have an argument in the case. As of now, the only person who
has been fired and is currently under investigation is Annie
Dookhan, however more and more every day is being discovered
regarding her malfeasance at the lab and how it could have affected
all of the other drug testing that was being done there. The entire
DPH Hinton lab has been closed, which is indicative of the depth of
the issues there.
If the client is in immigration custody, you should check for an
immigration detainer before arguing for release on bail because
once they are in ICE custody it is more difficult (and sometimes
completely impossible) to get them to state court to resolve the
criminal case or argue a motion for new trial. Keep in mind that
many judges are willing to waive the client's appearance if they
are in immigration custody because the judges are aware of the
difficulty of having clients brought in from immigration
custody.
If your client is in removal proceedings, check to see if a
Dookhan/Hinton lab drug case is the basis for removal or if it is a
bar to relief from removal. If so, ask the immigration judge to
continue the removal proceedings while the client pursues
post-conviction relief. It is presently the posture of the
immigration court that you need to show a Dookhan certificate to
obtain a continuance.
If a client has a final order of removal and the order is based
solely on Dookhan/Hinton conviction or if the conviction barred
relief from removal, file a motion to reopen the immigration
proceedings and request a stay of removal ASAP. You may also
want to contact the client's consulate and request travel documents
not be issued until the motion for new trial or motion to vacate
has been adjudicated.
It is important in all of these cases to be sure that on your
filings you indicate that they involve immigration consequences for
your client. Indicate to the clerk and to the court in the title of
your motion and on your cover letter that it is a "DPH Drug Lab
Case" and that your client is an immigrant with immigration
consequences as a result of the conviction.
Special sessions are being heard in several courthouses
throughout Massachusetts for these cases. In some counties,
attorneys have the option of either filing their Dookhan motions in
a special session or sending them directly to the sentencing judge.
In other counties, all Dookhan motions are being funneled into a
special session, regardless of where the attorney tries to file
them. We are learning more as each day passes in how these cases
are being handled.
Click
here to view the FREE MBA "Training Related to Dookhan and
Other DPH Cases," available via MBA On Demand.