Commonwealth v. DeJesus, ___ Mass. ___, ___ N.E.2d ___ 2014 Mass. LEXIS 389, *14 & n.7 (Mass. S.Jud.Ct. 2014) (counsel rendered prejudicial ineffective assistance, despite having told defendant that deportation was a possibility: Such advice does not convey what was the case here: that all of the conditions necessary for removal would be met by the defendant's guilty plea, and that, under Federal law, there would be virtually no avenue for discretionary relief once the defendant pleaded guilty and that fact came to the attention of Federal authorities. There is a significant difference, for example, in a lawyers advice to a client that the client faces five years of incarceration on a charge, as compared to advice that the conviction will result in a five-year mandatory minimum prison sentence.).

Note: The Court clearly explained why eligibility for deportation is inadequate language that fails to convey the inevitability of removal for those pleading guilty to aggravated felonies, and the foreclosure of relief resulting from such a plea. The Court wrote that merely [t]elling the defendant that he was eligible for deportation, and that he would face deportation, was not adequate advice because it did not convey what is clearly stated in Federal law. Advice that one is eligible for deportation conveys that the law requires additional conditions to be met before an individual could be removed and allows for the exercise of discretion in determining whether these conditions were met. Such advice does not convey what was the case here: that all of the conditions necessary for removal would be met by the defendants guilty plea, and that, under Federal law, there would be virtually no avenue for discretionary relief once the defendant pleaded guilty and that fact came to the attention of Federal authorities.

Further, pleading guilty to an aggravated felony, as the Massachusetts SJC has now recognized, is not the first step in becoming eligible for removal, but rather, in and of itself, satisfies all the conditions necessary for removal. For immigrant criminal defendants who receive inadequate legal advice and plead guilty to such a charge, removal is not a matter of if, and only a matter of when. Asma Khalid, Defense Attorneys Must Give Clear Advice On Possible Deportations, SJC Rules (May 19, 2014). Thanks to crimmigration.com.