MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2009, the defendant, a citizen of Vietnam, was charged with possessing a class D substance with intent to distribute. As part of a plea agreement reached in District Court in 2010 (CWOF agreement), the defendant pleaded to sufficient facts and his case was continued without a finding. In 2021, he moved to withdraw his plea, claiming that plea counsel was constitutionally ineffective by failing to give him adequate notice of the immigration consequences he faced by entering his plea.
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See Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010). A District Court judge denied that motion. The judge reasoned that because plea counsel had consulted with immigration counsel and thereafter informed the defendant that the CWOF agreement “ ‘could’ lead to adverse consequences including deportation,” he had not been constitutionally ineffective. We affirm, albeit on different grounds than relied upon by the motion judge.
The defendant contends that it was not enough for plea counsel to inform him that he “could” be deported based on the CWOF agreement. Instead, according to the defendant, plea counsel had a specific duty to inform him that the CWOF agreement rendered his deportation effectively “inevitable.” See Commonwealth v. DeJesus, 468 Mass. 174, 180-182 (2014) (where plea agreement rendered defendant presumptively deportable, plea counsel had duty to explain this). The flaw in the defendants argument is that he has not substantiated his premise that the CWOF agreement rendered his deportation inevitable. In fact, at the time his plea was entered, the defendant could not have been deported. That is because he entered the United States from Vietnam prior to 1995, and therefore enjoyed a protected status under a 2008 international agreement. See Commonwealth v. Nguyen, 89 Mass. App. Ct. 904, 904-905 (2016). Thus, “had plea counsel advised the defendant that the plea[ ] meant that he presumptively would be deported, this advice would have been inaccurate.” Id. at 905 n.5. We acknowledge that the 2008 international agreement under which the defendant had enjoyed protected status was modified in 2020 to allow for some deportations of Vietnamese citizens who had entered the United States prior to 1995.
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However, that subsequent change in Federal immigration law did “not mean that the advice that [the defendants] plea counsel provided about potential negative immigration consequences was inaccurate at the time the plea[ was] accepted.” Id. at 905 n.4.
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Accordingly, “[t]he premise underlying the defendants claim of ineffective assistance therefore fails, and the judge properly denied his motion[ ].” Id. at 905.
Order entered June 15, 2021, denying second motion to vacate guilty plea affirmed.
FOOTNOTES
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. This is the defendants second such motion. His earlier motion, filed in 2011, was denied because the defendant had not obtained an affidavit from his plea counsel or made an adequate showing regarding counsels failure to cooperate. In his 2021 motion, the defendant argues that his first postconviction counsel was ineffective in assembling the earlier motion. We assume, without deciding, that there was no bar on the defendants raising a Padilla claim a second time.
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. See Memorandum of Understanding Between the Department of Homeland Security of the United States of America and the Ministry of Public Security of the Socialist Republic of Viet Nam on the Acceptance of the Return of Vietnamese Citizens Who Arrived in the United States Before July 12, 1995 and Who Have Been Ordered Removed from the United States, http://archive.advancingjustice-alc.org/wpcontent/uploads/2021/07/Pre-95-Vietnam-Deportation-Advisory.pdf.
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. We additionally note that, based on current official Federal policy, it appears unlikely that the defendant would be deported under the 2020 agreement. See order on joint motion for entry of stipulated dismissal, Trinh vs. Acting Director, United States Immigration and Customs Enforcement, U.S. Dist. Ct., No. 8:18-cv-316-CJC-GJS (C.D. Cal. October 7, 2021), https://static1.squarespace.com/static/5f0cc12a064e9716d52e6052/t/618e99e5613d7372c1bb197e/1636735461479/Trinh+-+Doc+161+Order+Granting+Stip+Dismissal.pdf. That court filing sets forth the “current policy [held by the United States Immigration and Customs Enforcement] of generally finding that ‘pre-1995 Vietnamese immigrants’ (as defined in the Trinh Class Certification Order, Dkt. 75 at 2) are not likely to be removed in the reasonably foreseeable future.” Thus, even today, it is far from “inevitable” that the defendant will be deported as a result of the 2010 plea agreement.