Wendy S. Wayne is a staff attorney with the Committee for Public Counsel Services and currently the immigration law specialist. This article was edited by Iris Gomez, an immigration attorney with Massachusetts Law Reform Institute.
The Massachusetts Bar Association's House of Delegates has voted to support a bill that would require courts to warn non-citizens that their plea in relatively minor cases can have serious consequences. House Bill 2453 amends M.G.L. c.278, ß29D, also known as the "immigration warnings statute" or "alien rights statute."
The bill would require judges to inform non-citizens that "…acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization…" The current statute does not specify all the types of pleas that could have those consequences; it says only "a conviction of the offense." Because of significant changes in federal immigration law since 1996, an admission to sufficient facts resulting in a CWOF (continuance without a finding) is now often considered a "conviction" under federal immigration law, and a CWOF on even minor criminal offenses can thus result in deportation, exclusion from admission or denial of naturalization for long-term legal residents of the commonwealth.
In a case decided after former Governor Swift's veto of similar legislation last year, the Supreme Judicial Court acknowledged the current statute no longer correctly advises non-citizens of potential immigration consequences. The SJC stated in Commonwealth v. Villalobos, 437 Mass. 797 (2002), that "under current immigration law, the warning specified by the statute is inadequate, and even potentially misleading," and the court urged the Legislature to amend the statute. The SJC also suggested the warning required by the current statute could, in some cases, affect the voluntariness of pleas made in reliance on the warning, thereby constituting grounds to vacate those pleas. The SJC further stated in Villalobos that "[d]ifficulties such as those presented here will continue to arise so long as the immigration warnings required by our State statute do not encompass changes in Federal immigration law."
Another important amendment proposed by H.B. 2453 is a clarification regarding what kind of "record" is necessary to establish that the immigration warning was given in a particular case. The current statute merely says "record"; this bill adds "an official record or a contemporaneously written record kept in the court file." The issue of what kind of record is required under the current statute has been the focus of much litigation in the last few years. If no transcript is available of the plea, as is often the case, or if nothing exists in writing by which to determine whether the warning required by the statute was given, the Appeals Court and SJC have stated in recent cases that a record may be "reconstructed" based on the "customary practice" of the judge who did the plea colloquy. The SJC has gone so far as to state that a "reconstructed record," which supports the requirement of a "record" in the current statute, may consist solely of an affidavit by a judge that, having no recollection of the particular plea colloquy, it was her "customary practice" at that time (which could be years ago) to give the proper warning. H.B. 2453 clarifies that a real record is necessary, consistent with the original intent of the statute.
The bill also adds language specifying that the remedy afforded by the statute - vacation of judgment if the court failed to give the required warning - is available to a non-citizen even if she has already been ordered deported. This is also consistent with the original intent of the statute that the warning be provided to every defendant in every criminal case and that the conviction be vacated if the warning was not so provided. An increasing number of immigrants detained pending deportation hearings lack access to legal advice or assistance necessary to file a motion to vacate their pleas; this increases the likelihood that such motions cannot be filed prior to a deportation hearing. Even after an individual has been ordered deported, it may be many months before he is physically removed from the U.S. This time period may be the first opportunity the immigrant has to obtain legal advice or assistance in order to file a motion to vacate the plea that led to the order of deportation. Thus, the additional language is necessary to ensure that every defendant is afforded meaningful access to the protection of the warnings statute.
The bill also adds a sentence that "an advisement previously or subsequently provided to the defendant in another matter shall not satisfy the advisement required by this section…" As the potential consequences of each conviction or admission are different in every case and are especially different from what they were several years ago, due to recent changes in immigration law, a defendant cannot be assumed to know the immigration consequences of his or her plea just because he was advised of immigration consequences in an unrelated case five years ago.
As described above, the changes proposed by H.B. 2453 would bring c.278, ß29D into conformity with the realities of current immigration law and would clarify the language of the statute consistent with its original intent. Passage of this proposed bill is more important today than ever, as recent changes in federal immigration law have increased the likelihood that long-term non-citizen residents of this commonwealth will suffer severe consequences as a result of being charged even with relatively minor criminal offenses.