A New Script: Immigration Lawyers to be held accountable for “correct” legal advice

Decisions made in the Massachusetts Supreme Judicial Court (SJC) could affect the way that immigration lawyers in the state represent their clients, as a local Boston radio station reports. A recent case in which a lawful permanent resident of the state was picked up for driving with a suspended license and flagged for deportation is being reexamined under the argument that the defendant didn’t get sound legal counsel in his prior guilty plea for charges related to cocaine possession. The defendant Elan DeJesus reported that his immigration lawyer told him that he could avoid jail time if he pleaded guilty to a lesser offense and told his client that was what was best for him. DeJesus claims he didn’t understand the danger, that is, until he was facing a deportation order.

DeJesus’s case has spurred an intense legal debate in the Massachusetts courts system. When he was issued a deportation order, DeJesus withdrew his former plea of guilty based on the argument that his immigration attorney didn’t give him accurate advice. The judge hearing his case agreed with him. The county’s district attorney, however, did not; the state’s highest court intervened and “grabbed the case.” Harvard law school lecturer Phil Torrey posits that the DeJesus case could offer insight for immigration lawyers and future cases, stating that “the fact that the SJC has picked it up, and that the SJC wants to weigh in on what type of advice is really required in these circumstances…[signifies] that the decision could have very wide implications in Massachusetts.”

Figures published in the article note that 11.2% of all deportations in the US, and 17.5% of deportations in Massachusetts are of legal permanent residents with criminal convictions. How many of those are related to non-violent drug offenses wasn’t explicitly stated, but in proportion to the number of arrests each year for non-violent drug related crimes, the likelihood is high rates of non-violent offenses. Massachusetts immigration lawyers and policy makers understand that there is something inherently unjust about the situation, but are coming up stuck on how to resolve it.

During the oral arguments in DeJesus’s case the players in the court of law sparred back and forth about what his immigration lawyer should have disclosed and how DeJesus should have been apprised of the inherent risks and benefits of each option. Saying that an individual may be “eligible” is not enough, some were arguing, and that “certain future deportation” should be the terminology conveyed to clients who plead guilty. Others say there’s no “correct” way to say it, and that immigration lawyers are instead charged with analyzing the law and the client’s facts and conveying that information to the client in a clear and responsible way.

While the DeJesus question may not be settled, the state of Massachusetts reminds immigration lawyers of the federal case Padilla v. Kentucky in which the Supreme Court ruled that attorneys have a duty to give their non-citizen clients correct advice about immigration consequences. Applied retroactively in the commonwealth, immigrants sentenced 10 or 15 years ago who can prove their lawyers gave them bad or no advice have a right to appeal. Immigration lawyers, in the meantime, are left to do their best to navigate the nation’s muddy and convoluted immigration law to their best ability.