Immigration Related Post-conviction Matters

IIU Post Conviction Intake Form

General Resources for Post-conviction Matters

Impact of Direct Appeals on the Immigration Consequences of Criminal Convictions

IIU Guide to Immigration Consequences of Massachusetts Criminal Convictions (April 2022)Please note that Appendix 3 of the IIU Guide (Immigration Consequences of Selected Massachusetts Offenses Reference Chart) has been removed. Appendix 3 from 2018, and all prior charts, is out of date and should no longer be relied upon. Please contact the IIU for up-to-date information about specific offenses.

DACA and Criminal Bars (August 2020)

Temporary Protected Status (TPS) and Criminal Bars

Padilla Motions and Case Law

IIU Training Power Point: Creating a Record for Padilla Motions

Sample Padilla Motion

Commonwealth v. Mercado, May 2016 (holding that the retroactivity affirmed in Sylvain extends further back to April 24, 1996 for certain convictions).

Commonwealth v. Sylvain II – March 2016 (finding that the motion judge had not abused his discretion in allowing the motion to vacate based primarily upon affidavits of the defendant and plea counsel).

Commonwealth v. Lavrinenko – October 2015 (finding that defense counsel is required to make a “reasonable inquiry” into a defendant’s immigration status and must provide advice about the possibility of a conviction barring relief from removal. The court also held that in the prejudice analysis, a defendant’s refugee or asylee status constitutes a special circumstance which is entitled to “particularly substantial weight”).

Commonwealth v. DeJesus – May 2014 (finding that the Sixth Amendment and Article 12 require defense counsel to provide specific advice regarding the immigration consequences of a conviction in a manner that the defendant can comprehend).

Commonwealth v. Sylvain – September 2013 (finding that despite the Supreme Court’s holding in Chaidez, the duty to properly advise a defendant regarding immigration consequences exists under article 12 of the Massachusetts Declaration of Rights and is retroactive to April 1, 1997).

Chaidez v. United States – March 2013 (finding that federal courts may not apply Padilla retroactively to convictions that became final before the date Padilla was issued – March 31, 2010).

Commonwealth v. Marinho – January 2013 (finding that defense counsel’s duty to advise about immigration consequences includes advising noncitizen clients prior to trial and further extends to advocating at sentencing for dispositions that minimize immigration consequences).

Commonwealth v. Clarke – August 2011 (interpreting the U.S. Supreme Court decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), finding that decision to be retroactive in Massachusetts, and providing a framework for establishing prejudice in such motions).

Padilla v. Kentucky – March 2010 (holding that criminal defense attorneys are required under the Sixth Amendment to advise noncitizen clients of the immigration consequences of their guilty pleas).

Immigration Defense Project Practice Advisory on Padilla v. Kentucky

“Alien warnings” Motions, MGL 278 §29D

Commonwealth v. Petit-Homme – April 2019 (discussing the requirements under MGL 278 §29D).

Commonwealth v. Valdez – August 2016 (finding that the standard for establishing prejudice when the immigration consequence at issue is “exclusion” or denial of admission is different from deportation and explaining how a defendant can meet their burden).

Commonwealth v. Grannum – July 2010 – (finding that although the presumption of regularity does not apply to motions for new trial brought under MGL 278 §29D, a defendant must still show that the criminal conviction will actually result in deportation proceedings).

ICE Arrests and Detention