By Thamys Gaertner
In October 2015, the Supreme Judicial Court of Massachusetts expanded on the duty of criminal defense attorneys’ to reasonably inquire into clients’ immigration status in cases involving refugees or asylees.
Pavel Lavrinenko immigrated to the United States with his family as a refugee in 2000. Commonwealth v. Lavrinenko, 38 N.E.3d 278, 282-83 (Mass. 2015). The family fled Russia to escape religious persecution by the Russian government. Id.
On April 10, 2005, Mr. Lavrinenko crashed into a lamp post while driving intoxicated, leading officers to a foot pursuit into a river. Id. at 283. The officers reported seeing the defendant holding a stick in a “threatening manner”. Id. After being told multiple times to drop the stick, the officers pepper sprayed Mr. Lavrinenko, which forced him back onto shore without the stick. Id. On April 11, 2005, a complaint with 7 counts, including assault by means of a deadly weapon (the stick), was issued. At that time the defendant had pending cases in another county. Id.
On April 29, 2005, Mr. Lavrinenko pled guilty to all remaining charges including driving under the influence and assault by means of a dangerous weapon. Id. Mr. Lavrinenko was sentenced to a total of ninety days in jail on all charges. Id. at 284. The trial judge called Mr. Lavrinenko’s pleas a part of a “global resolution” to all pending and current charges. Id.
Seven years later, Mr. Lavrinenko was detained by the United States Immigration and Customs Enforcement (ICE) agency and placed into removal proceedings. Id. Mr. Lavrinenko applied for adjustment of status to lawful permanent resident, but the court first wanted a determination of whether Mr. Lavrinenko was a “violent or dangerous” person. Id. On December 3, 2013, Mr. Lavrinenko returned to state court to request withdrawal of his guilty plea to the charge of assault by means of a dangerous weapon. An evidentiary hearing showed that plea counsel did not remember advising this defendant about the immigration consequences of his pleas. Furthermore, Mr. Lavrinenko’s plea counsel testified that he only gave a standard warning covered by the “Tender of Plea or Admission Waiver of Rights” to his clients. Id. at 284. Following that evidentiary hearing the judge concluded that Mr. Lavrinenko had not been prejudiced by his plea counsel’s faulty performance because the outcome of his “global resolution” was much better than the actual sentences he could have received. Id. at 285. Mr. Lavrinenko appealed to the Massachusetts Supreme Judicial Court, the state’s highest court. Id.
The court discusses how in order for a noncitizen to be admitted as a refugee he/she must meet the definition of “refugee” in the Immigration and Nationality Act, which defines that term as a person “who is unable or unwilling to return to … [the person’s country of origin] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42) (2012); INA § 101(a)(42)(2015).
At the evidentiary hearing Mr. Lavrinenko and his immigration attorney provided testimony, governmental and nongovernmental reports, United States congressional resolutions and news stories about how Pentecostal Christians are and were treated in Russia. Id. at 286.
Discretionary Immigration Relief
The court next turned its discussion to the discretionary immigration relief refugees are allowed in the United States after they are found inadmissible. Id. In order to adjust status from refugee to lawful permanent resident, a refugee must satisfy the admissibility requirements of 8 U.S.C. § 1182(a); INA § 212(a). A noncitizen who has committed two or more “crimes involving moral turpitude” is inadmissible under § 1182(a)(2), § 212(a)(2), and deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (2012); INA § 237(a)(2)(A)(ii). Mr. Lavrinenko did not dispute being deportable because he had pled to two crimes involving moral turpitude. Id. Yet, even when a refugee is found inadmissible the refugee can still apply for a waiver of inadmissibility. See 8 U.S.C. § 1159(c) (2012); INA § 209(c). However, in 2002 the Board of Immigration Appeals released an opinion limiting this avenue of relief to refugees who are “violent or dangerous individuals.” Id. (quoting In re Jean, 23 I. & N. Dec. 373, 383 (A.G. 2002)). Refugees who commit dangerous or violent crimes can still apply for a waiver, but their requests are subject to a “heightened standard.” Ali v. Achim, 468 F.3d 462, 466-467 (7th Cir. 2006).
Ineffective Assistance of Counsel
Mr. Lavrinenko argues that his plea counsel provided ineffective assistance of counsel by advising him to plead guilty to assault by means of a dangerous weapon which rendered him a “violent or dangerous individual” and thereby eliminated any possibility of acquiring relief. Id. at 288. In order to succeed on his ineffective assistance of counsel claim Mr. Lavrinenko bears the burden of proving that his plea counsel’s advice was “measurably below that which might be expected from an ordinary fallible lawyer,” and that he suffered prejudice because of his attorney’s faulty advisement. Commonwealth v. Clarke, 949 N.E.2d 892 (2011) (quoting Commonwealth v. Saferian, 315 N.E.2d 878 (1974)). [For more on Clarke, read crImmigration.com’s earlier analysis.]
First, the court determined whether Mr. Lavrinenko’s plea counsel performed and advised him following “professional standards of the legal community.” Clarke, 949 N.E.2d at 904; See Lavrinenko, 38 N.E.3d at 288. Furthermore, defense counsel must make a reasonable inquiry into the client’s history and whether he or she is an American citizen in order to most effectively provide accurate advice. Id. Also, more importantly a criminal defense attorney must know whether his or her client was admitted into this country as a refugee. Id. “[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 v. Kentucky, 559 U.S. 356, 364 (2010).
Here, plea counsel admits that his common practice in 2005 was to give all defendants a standard immigration warning without inquiring into their legal status. Lavrinenko, 38 N.E.3d at 289. Counsel failed to ask whether the defendant was admitted to the United States as a refugee and thus he failed to adequately gather information to advise his client on the consequences of the plea. Id.
Having concluded that plea counsel’s performance was constitutionally deficient, the court next turned to the question of whether Mr. Lavrinenko was actually prejudiced by that deficient performance. “In the context of a guilty plea, in order to satisfy the ‘prejudice’ requirement, the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Clarke, 949 N.E.2d. at 905 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In order to prove that it was rational to reject the plea under the totality of the circumstances, “the defendant bears the substantial burden of showing that (1) he [or she] had an ‘available, substantial ground of defence,’ … that would have been pursued if he [or she] had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time or (3) the presence of ‘special circumstances’ that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Clarke, 949 N.E.2d. at 906.
Mr. Lavrinenko claims that a reasonable person in his situation would have chosen to go to trial for two reasons. Lavrinenko, 38 N.E.3d at 292. First, he claims that he had a legitimate defense to the charge. Mr. Lavrinenko argues that the police officer that pepper sprayed him could not have been in fear of imminent bodily harm because he was using a branch to balance himself in the water. Id. at 293. Second, Mr. Lavrinenko contends that his refugee status in itself establishes a “special circumstance” and this special circumstances establishes prejudice. Id. Mr. Lavrinenko argued that this “special circumstance” would have made him place a larger emphasis on pleading guilty due to the serious immigration consequences. Id. The court agreed, but decided that the presence of a special circumstance alone does not equate to prejudice. Id. Refugees are entitled to an evidentiary hearing in order to decide the scope and severity of the persecution the refugee would face if deported back to their home country at the time of the plea. Id. at 294. The court concluded that there is no record or evidence suggesting that the trial court took Mr. Lavrinenko’s refugee status into account when determining if he was prejudiced. Id. Failure to evaluate a special circumstance is an error of law and therefore the case was to remanded in order to re-evaluate this point. Id. at 295.
This decision broadens and clarifies the rights of noncitizen defendants, especially refugees, to receive proper advisements of immigration consequences in pleas.
Thamys Gaertner is a second-year law student at the University of Denver Sturm College of Law. Thamys is currently completing an externship with the Rocky Mountain Immigrant Advocacy Network. She is passionate about immigration law and hopes to dedicate her career to representing immigrants.
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