GANTS, C.J.
We also conclude that, in determining whether a defendant suffered prejudice from counsel's deficient performance, "special circumstances" regarding immigration consequences, as contemplated in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011), should be given substantial weight in determining, based on the totality of the circumstances, whether there is a reasonable probability that the defendant would have rejected the plea offer and insisted on going to trial had counsel provided competent advice regarding the immigration consequences of the guilty plea. Moreover, a defendant's status as a refugee or an asylee is a special circumstance entitled to particularly substantial weight. Because the motion judge found that counsel's performance was deficient but did not consider the defendant's refugee status in finding that the defendant suffered no prejudice, we vacate the denial of the motion for a new trial and the motions for reconsideration, and remand the matter to the District Court for further proceedings consistent with this opinion.
Background. The following facts are drawn from the motion judge's findings of fact, supplemented with details from the record where they are consistent with the judge's findings. The defendant was born in Novokuznetsk, Russia, and came to the United States with his parents and two siblings in 2000 at the age of thirteen. They had left Russia to escape religious persecution as Pentecostal Christians, and were admitted into the United States as refugees.
A complaint issued on April 11, 2005, charging the defendant in the Springfield Division of the District Court Department (Springfield District Court) with seven counts, including driving while under the influence of alcohol, leaving the scene of property damage, and assault by means of a dangerous weapon (the stick).
On October 31, 2012, the defendant was detained by United States Immigration and Customs Enforcement and subsequently placed in removal proceedings. An immigration judge granted the defendant's application for adjustment of status to lawful permanent resident, but the United States Department of Homeland Security appealed the decision, and the board of immigration appeals remanded the case for further proceedings to determine whether the defendant is a "violent or dangerous" individual.
On December 3, 2013, the defendant filed a motion to withdraw his guilty plea to the charge of assault by means of a dangerous weapon. The judge who had accepted the defendant's guilty plea in 2005 conducted a nonevidentiary hearing, and denied the motion. After the defendant filed a motion for reconsideration, the judge held an evidentiary hearing during which the defendant, the defendant's criminal defense attorney at the time of his guilty plea (plea counsel), and the defendant's immigration counsel testified.
Although plea counsel could not remember whether he advised the defendant about immigration consequences, he explained that, as a matter of course, he gave a standard warning to all of his clients that essentially repeated the same warnings included in the "green sheet," that is, the District Court Department's preprinted "Tender of Plea or Admission Waiver of Rights" form.
Plea counsel further testified that, unless "there was some red flag" or an issue that the client brought to his attention, he would give this standard advice regardless of the particular charges in the case. He noted that, if the client "brought something to [his] attention and [he] thought that it might be ... in [the client's] best interests to do some further research, [he has] done that over the years." However, he was not aware at the time of the defendant's plea of any immigration law issues specific to refugees and did not "remember ever having a discussion with any client regarding refugee status."
The judge acknowledged that he possessed "no independent memory of this defendant or the events surrounding the plea," and found that neither the defendant nor plea counsel had significant memory of any discussions regarding immigration issues. Thus, it was unclear "what if any immigration warnings were discussed between the defendant and [plea counsel]." The judge found that "it is clear that the issue of the defendant's refugee status was not addressed," and for that reason, counsel's performance was deficient.
Discussion. 1. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014), citing Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In doing so, "[w]e accept the judge's findings of fact if supported by the evidence, because the judge who heard the witnesses testify is the `final arbiter on matters of credibility.'" DeJesus, supra, quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014).
2. Refugee status. Before turning to whether counsel's performance was constitutionally deficient, we discuss the defendant's refugee status and the immigration consequences at issue in this case. Under Federal law, a noncitizen who is outside the United States may be admitted into the United States in the discretion of the United States Attorney General if granted refugee status. See 8 U.S.C. § 1157(c) (2012) (subject to limitations on number of refugees able to be admitted per year, United States Attorney General may in his or her discretion "admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible").
Although not defined in either the act or the immigration regulations, "persecution" generally means abuse that has "reached a fairly high threshold of seriousness, as well as some regularity and frequency." Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir. 2013), quoting Rebenko v. Holder, 693 F.3d 87, 92 (1st Cir. 2012). See Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir. 2010) ("The `severity, duration, and frequency of physical abuse' are factors relevant to this determination, ... as is whether harm is `systematic rather than reflective of a series of isolated incidents'" [citations omitted]). The person seeking refugee status "must also demonstrate that the persecution he [or she] experienced occurred `on account of' a statutorily-protected ground," that is, race, religion, nationality, membership in a particular social group, or political opinion. Ivanov, supra at 12, quoting Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007).
Here, the defendant was admitted into the United States with his family as a refugee, and his refugee status had not been terminated at the time of the plea.
3. Discretionary immigration relief. One year after a refugee is admitted into the United States, he or she may be eligible to adjust his or her status to be regarded as "lawfully admitted to the United States for permanent residence," and receive what is commonly known as a "green card." 8 U.S.C. § 1159(a) (2012). To adjust one's status from refugee to lawful permanent resident, a refugee must satisfy the admissibility requirements of 8 U.S.C. § 1182 (2012). A noncitizen who has committed two or more crimes "involving moral turpitude" is inadmissible under § 1182(a)(2), and is deportable. See 8 U.S.C. § 1227(a)(2)(A)(ii) (2012) ("Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable"). The defendant in his immigration appeal did not challenge the immigration judge's determination that he is inadmissible and deportable because he committed two crimes involving moral turpitude, specifically malicious destruction of property and knowingly receiving stolen property.
However, even where, as here, a refugee is inadmissible and deportable, the refugee may still seek an adjustment of status from
The United States Attorney General in 2002 published an opinion that limited the availability of a discretionary waiver of inadmissibility regarding refugees who are "violent or dangerous individuals." In re Jean, 23 I. & N. Dec. 373, 383 (A.G. 2002). The Attorney General declared that it would not be "a prudent exercise" of this discretion "to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship." Id. The Attorney General added that, "depending on the gravity of the alien's underlying criminal offense, such a showing might still be insufficient." Id. Under this opinion, refugees who commit violent or dangerous crimes are not automatically barred from obtaining a waiver, see Jean v. Gonzales, 452 F.3d 392, 397 (5th Cir. 2006), but their waiver request is subject to a "heightened standard." Ali v. Achim, 468 F.3d 462, 466-467 (7th Cir. 2006).
Here, the defendant argues that as a result of his guilty plea to the charge of assault by means of a dangerous weapon, he was subject to the heightened standard under In re Jean. Because there are no facts showing any likelihood that the defendant could
4. Ineffective assistance of counsel. The defendant argues that his plea counsel provided ineffective assistance of counsel by failing to adequately inform him of the immigration consequences of pleading guilty to the charge of assault by means of a dangerous weapon, and that his plea to that offense should be vacated and a new trial ordered.
a. Deficient performance. In determining the level of performance required of an ordinary fallible lawyer, we look to the "professional standards of the legal community." Clarke, supra at 45. See Padilla v. Kentucky, 559 U.S. 356, 366 (2010) ("We long have recognized that `[p]revailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable'" [citation omitted]). "The weight of prevailing professional norms supports the view that counsel must advise [his or] her client regarding the risk of deportation." Id. at 367. See Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013) ("under art. 12 [of the Massachusetts Declaration of Rights] defense counsel must accurately advise a noncitizen client of the deportation consequences of a guilty plea or a conviction at trial").
Just as the ordinary physician must take a history from the patient before rendering a diagnosis, so, too, must the ordinary criminal defense attorney make a reasonable inquiry of his or her client regarding the client's history, including whether he or she is a citizen of the United States. See Clarke, 460 Mass. at 45-46, citing National Legal Aid and Defender Ass'n, Performance Guidelines for Criminal Representation § 2.2(b)(2) (1995), and General Policies Applicable to all Assigned Counsel, CPCS Performance Standards Governing Representation of Indigents in
Where a criminal defense attorney learns that his or her client is a noncitizen, the attorney must make further reasonable inquiry of the client to determine, where possible, the client's immigration status. See L. Rosenberg, D. Kanstroom, & J.J. Smith, Immigration Consequences of Criminal Proceedings 2-3 (2011) ("The first specific problem facing the criminal law practitioner who encounters a noncitizen in criminal proceedings is to determine as accurately as possible the person's exact legal status under the immigration laws of the United States"); American Bar Association Criminal Justice Standards for the Defense Function, Standard 4-5.5 (4th ed. 2015) (pending publication) ("Defense counsel should determine a client's citizenship and immigration status, assuring the client that such information is important for effective legal representation and that it should be protected by the attorney-client privilege"). See also D. Kesselbrenner & L. Rosenberg, Immigration Law & Crimes § 1:4, at 5 (2015) ("Within th[e] comprehensive category [of noncitizens], an individual noncitizen has a more specific immigration status, which is a relevant factor to the practitioner representing him or her in either the criminal or immigration arena, or in both").
It is especially important that a criminal defense attorney learn whether his or her client was admitted into this country as a refugee. "[D]eportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." Padilla, 559 U.S. at 364. Where the client was admitted into this country as a refugee, the consequence of deportation might be especially severe, because the client obtained such status only after the immigration authorities determined that he or she faced persecution on account of race, religion, nationality, membership in a particular social group, or political opinion in his or her country of origin. Because that persecution may result in many forms of harm or suffering, including potentially death or serious injury, the avoidance of deportation may be of immense importance to a refugee. See id. at 370 n.11 ("were a defendant's lawyer to know that a particular offense would result in the
Here, although plea counsel had little memory of his representation of the defendant, he admits that in 2005 it was not his usual practice to ask clients facing criminal charges whether they were noncitizens, and that his usual practice was simply to give all of his clients a standard warning on immigration consequences. It is not sufficient for a criminal defense attorney, as a matter of practice, merely to give the same warning that the defendant will receive from the judge during the plea colloquy required by G. L. c. 278, § 29D. See Clarke, 460 Mass. at 48 n.20 ("[T]he receipt of such warnings is not an adequate substitute for defense counsel's professional obligation to advise [his or] her client of the likelihood of specific and dire immigration consequences that might arise from such a plea"). See also DeJesus, 468 Mass. at 177 n.3.
The motion judge also found that the defendant's refugee status was not "addressed." Plea counsel had no recollection of being aware of the defendant's refugee status; he testified that refugee status would have been a "red flag" that, at a minimum, would have caused him to conduct further research. Because plea counsel failed to make a reasonable inquiry of the defendant to learn of this "red flag," counsel failed to learn what he needed to know to advise his client competently regarding the immigration consequences of a guilty plea. See Strickland v. Washington, 466 U.S. 668, 691 (1984) ("counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"). Cf. Commonwealth v. Lang, 473 Mass. 15 (2015) (Hines, J., concurring) (defense counsel's performance is deficient where he or she is aware of information that may call into question defendant's criminal responsibility but declines to investigate or otherwise consider defendant's mental condition).
To prove that rejecting the plea would have been rational under
Having so attested, the defendant argues that, had he been properly advised of the immigration consequences, there is a reasonable probability that a reasonable person in his circumstances would have chosen to go to trial on the assault by means of a dangerous weapon charge for two reasons. First, he contends that he had a substantial defense to this charge. "Under the common law, an assault may be accomplished in one of two ways — either by an attempted battery, or by putting another in fear of an immediately threatened battery." Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000). The defendant correctly asserts that, under the circumstances described in the police report, the Commonwealth in this case would have needed to proceed under the theory of an immediately threatened battery. "Under the immediately threatened battery category, what is essential is that the defendant intended to put the victim in fear of imminent bodily harm, not that the defendant's actions created a generalized fear ... in the victim." Id. at 248-249. "The victim's apprehension of imminent physical harm must be reasonable." Commonwealth v. Werner, 73 Mass.App.Ct. 97, 102 (2008). "In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances." Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
The defendant argues that, where the police report declares that
The judge made no factual findings as to whether this was a substantial defense, or as to the credibility of the assertions in the police report.
Second, the defendant contends that his refugee status alone established the presence of "special circumstances," and that the presence of special circumstances necessarily establishes prejudice. We agree that a defendant's refugee status is a special circumstance and that the presence of special circumstances alone might establish prejudice, but we do not agree that the presence of special circumstances alone necessarily establishes prejudice.
A defendant may fervently desire to remain in the United States because of the depth and quality of the roots he or she has planted in this country. For example, in DeJesus, supra at 183-184, the defendant established special circumstances where he "had a lot to lose if he were to be deported," considering that "he had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area." Where the defendant is a refugee, however, a judge must also consider that the defendant might fervently desire to remain in the United States because of what he or she might face if deported, that is, the risk of persecution in his or her country of origin or the alternative of being deported to a country that might never have been that person's home, if that country would agree to accept that person. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th Cir. 2004), quoting Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) ("deportation is a `harsh measure ... all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country'"). See also 8 U.S.C. § 1231(b)(2) (2012) (procedure by which United States Attorney General determines country where noncitizen shall be removed); United States Department of Justice, Fact Sheet: Asylum and Withholding of Removal Relief Convention Against Torture Protections (Jan. 15, 2009) (relief in form of "withholding of removal" prohibits removal to country where noncitizen's life or freedom would be threatened, "but allows removal to a third country where [the person's] life or freedom would not be threatened"). Therefore, a defendant's refugee status, by itself, is also a special circumstance.
But special circumstances do not necessarily require a finding of prejudice. As stated in Clarke, 460 Mass. at 47-48, special
There is nothing in the judge's findings and order on the defendant's motion for a new trial or for reconsideration that suggests that he considered the defendant's refugee status in
On remand, in deciding anew the question of prejudice, the judge will need to consider that this motion for a new trial differs from the more typical case where a defendant contends that defense counsel did not give fair warning that "if Federal authorities apprehended the defendant, deportation would be practically inevitable." DeJesus, 468 Mass. at 181. Here, the defendant does not seek to withdraw his guilty pleas to the charges of malicious destruction of property and knowingly receiving stolen property that formed part of the "global resolution" of his pending matters, and he does not dispute that these are crimes of moral turpitude that alone make him deportable.
Therefore, we remand the case to the District Court with instructions to conduct an evidentiary hearing regarding prejudice. In deciding whether there is a reasonable probability that the defendant would have chosen to go to trial on the charge of assault by means of a dangerous weapon had he been competently advised of the immigration consequences of a guilty plea, the special circumstance of the defendant's refugee status must be given particularly substantial weight in the totality of circumstances. Here, the critical factual determination for the judge is what a reasonable defendant, under the circumstances, would have estimated to be the chance of acquittal on that charge had he gone to trial, bearing in mind that, in light of the weight to be given to the defendant's refugee status and the fact that the defendant faced only a house of correction sentence if convicted in the District Court, even a small chance of acquittal may be sufficient to show that it was reasonably probable that a person in the position of the defendant would have rejected the plea and insisted on going to trial.
Conclusion. The orders denying the defendant's motion for a new trial and the motions for reconsideration are vacated, and the matter is remanded to the District Court for proceedings consistent with this opinion.
So ordered.
The judge may also consider "the risks faced by a defendant in selecting a trial rather than a plea bargain." United States v. Kayode, 777 F.3d 719, 726 (5th Cir. 2014). This may include the risk that a conviction would result in a sentence at or close to the "maximum allowable sentence had [the defendant] gone to trial," Commonwealth v. Roberts, 472 Mass. 355, 365 (2015), or the risk that a conviction at trial would result in a mandatory minimum sentence substantially more severe than the sentence offered through a guilty plea to a lesser charge. Additionally, a defendant who faces only a house of correction sentence if convicted at trial may be more willing to forgo a plea bargain to avoid the risk of deportation than a defendant facing the possibility of a lengthy State prison sentence.
In some cases, the judge might also consider the extent to which an acquittal at trial would reduce or eliminate the risk of immigration consequences. A defendant who can eliminate the risk of deportation through an acquittal is more likely to insist on going to trial than a defendant who is deportable regardless of the outcome at trial. See, e.g. People v. Haley, 96 A.D.3d 1168, 1169 (N.Y. 2012) (no prejudice where "regardless of whether defendant pleaded guilty ..., had been found guilty after trial or had been acquitted, his status as a deportable alien would not have been affected").
"Ultimately, a defendant's decision to tender a guilty plea is a unique, individualized decision, and the relevant factors and their relative weight will differ from one case to the next." Roberts, supra at 365-366, quoting Commonwealth v. Scott, 467 Mass. 336, 356 (2014). Under certain circumstances, even the near certainty of a lengthy State prison sentence if convicted may not deter a rational defendant from risking trial to preserve the possibility of acquittal. See Padilla, 559 U.S. at 368, quoting Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 322 (2001) (preserving defendant's right to remain in United States may be more important than "any potential jail sentence"); Orocio, 645 F.3d at 645 (defendant facing ten-year minimum sentence "rationally could have been more concerned about a near-certainty of multiple decades of banishment from the United States than the possibility of a single decade in prison").