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Immigrants can fight old verdicts, SJC rules

In a decision that may help some Massachusetts residents avoid deportation, the Supreme Judicial Court ruled Friday that immigrants convicted of crimes since 1997 may seek to reverse those convictions if they can show that their lawyers gave them bad advice about the impact a conviction would have on their immigration status.

In a unanimous ruling written by Justice Robert Cordy, the state’s highest court invoked the Massachusetts Declaration of Rights to conclude that defense lawyers have a constitutional duty to provide clients with accurate advice.

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The court said this principle covers immigrants, legal and illegal, convicted of crimes in Massachusetts since April 1, 1997, when federal law was changed to permit automatic deportation of those sentenced to one year in prison or one year of probation.

If those immigrants can show that their lawyer failed them, they may be able to have their convictions overturned, giving them a chance to remain in the United States, lawyers said.

“A significant percentage of people being deported are long-term legal residents who have a relatively minor offense from a long time ago,’’ said Wendy S. Wayne, of the Immigration Impact Unit at the Committee on Public Counsel Services, the state’s public defender agency, which sought the ruling.

‘A significant percentage of people being deported are long-term legal residents who have a relatively minor offense from a long time ago.’

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She added, “this decision allows them to challenge those guilty pleas they may have made without realizing the drastic consequences that would result.’’

The ruling came in the case of Kempess Sylvain, who was arrested by Boston police on April 15, 2007, on charges of possession of crack cocaine. He ultimately pleaded guilty and was given a suspended 2½-year sentence and jailed for 11 months. Both Sylvain and his lawyer told the SJC he would have not pleaded guilty if he had known it could lead to his deportation.

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In a similar case, the US Supreme Court ruled 7 to 2 in February that people like Sylvain, who later learn their lawyer did not give them accurate advice, have no constitutional right to undo their convictions retroactively.

But the SJC said that under the Massachusetts Constitution and under the federal Bill of Rights there will be retroactive protection in the Bay State.

“Under Article 12 of the Massachusetts Declaration of Rights, defense counsel has a duty to provide noncitizen defendants with accurate advice regarding the deportation consequences of pleading guilty or being convicted at trial and that this right also applies retroactively to cases on collateral review,’’ Cordy wrote for the unanimous court.

New England School of Law professor David M. Siegel, who filed a friend-of-the-court brief in the case, said the SJC reached a wholly different conclusion than the US Supreme Court on a key constitutional issue.

“The US Supreme Court has said that constitutional errors after a certain point aren’t important enough to correct,’’ he said. “What the SJC has said is that’s not the case in Massachusetts.’’

Wayne and Jake Wark, spokesman for Suffolk District Attorney Daniel F. Conley’s office, which prosecuted Sylvain, both said they do not expect a wave of new litigation because the principles the SJC addressed were first laid out in 2010, and lawyers have already filed numerous appeals. Moreover, it is difficult to prove that a lawyer provided ineffective legal counsel, they said.

John R. Ellement can be reached at ellement@
globe.com
.

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