On September 13, 2013, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Sylvain, held that the duty of defense counsel to accurately advise noncitizens clients of immigration consequences, as announced in Padilla v. Kentucky, is retroactive under Massachusetts common law for convictions obtained after April 1, 1997. The SJC also found a separate duty to properly advise noncitizen defendants under article 12 of the Massachusetts Declaration of Rights.
In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC had held that Padilla was not a “new rule” under Teague retroactivity analysis and found it to be retroactive to 1997; however, in Chaidez v. U.S., 133 S.Ct. 1103 (2013), the U.S. Supreme Court disagreed and found Padilla to be a new rule and thus not retroactive. Subsequent to Chaidez, the SJC took this case sua sponte from the Appeals Court to determine that, despite the Supreme Court’s ruling, Padilla was retroactive under Massachusetts law.
The Sylvain decision therefore restores the viability of Massachusetts Rule 30 motions based on ineffective assistance of counsel for failure to properly advise about immigration consequences for convictions obtained after April 1, 1997. This means that individuals with convictions obtained in the Commonwealth of Massachusetts after April 1, 1997, may be able to avoid the immigration consequences of such convictions under certain circumstances.
It is important to seek advice from experienced immigration counsel when evaluating the immigration consequences of criminal activities.