BBA Welcomes Decision Ordering Evidentiary Hearing on Defense Counsel’s Advice to Client on Immigration Consequences
Case Turns on Plea Counsel’s Later Realization That His Advice to Defendant Had Been Insufficient
The Boston Bar Association (BBA) welcomes today’s ruling from the Supreme Judicial Court (SJC) in Commonwealth v. Santana, which reinforces a critical safeguard for non-citizen defendants by ensuring that the constitutional right to effective assistance of counsel—particularly as it relates to clear and severe immigration consequences—is meaningfully protected. The Court held that, before denying a non-citizen defendant’s motion to withdraw his guilty plea, a judge should have held an evidentiary hearing to explore the defendant’s claims that his trial counsel had not sufficiently advised him, as required, of the near-certainty that the resulting conviction on drug-related offenses would result in his deportation.
The BBA, joined by the Committee for Public Counsel Services (CPCS), urged the Court to reach this result in a joint amicus brief, arguing that it was error for the motion judge to rule without a hearing. “Many criminal defense attorneys are not well versed in the complexities of immigration law,” the brief notes, and “the inadequacy of their advice is generally not brought to defense counsel’s attention until they later learn new information, or the defendant pursues post-conviction relief.”
The amicus brief further argued that the judge—who had also presided over the plea stage—had misinterpreted plea counsel’s statement. While counsel initially indicated that he had discussed possible immigration consequences with his client, his later affidavit made clear that he had come to understand that the guidance he gave at the plea stage was constitutionally inadequate.
In a 5-2 decision, Justice Dalila Wendlandt wrote for the majority, saying,
While we defer to the motion judge’s findings especially where, as here, he was the plea judge, those findings do not support the judge’s decision to discredit counsel’s affidavit altogether without an evidentiary hearing; indeed, it appears the judge did not recognize the ambiguity … [T]he foundation of the judge’s credibility finding was his determination that counsel’s statements during the colloquy were irreconcilable with his affidavit. But that determination is infirm. Counsel’s statements at the colloquy … and his present averments that he would have told the defendant that he was subject to deportation, but not that he was automatically deportable … are not inherently in tension.
Although the SJC did not embrace a presumption that evidentiary hearings should be held in such circumstances, Maria Durant of Hogan Lovells, who co-authored the joint brief on behalf of the BBA, stated, “The Court’s decision represents an important victory, as it provides a roadmap for defense counsel and lower courts to ensure that immigration consequences are fully understood and properly addressed during plea colloquies.”
“Amicus Curiae” means, literally, “friend of the court.” Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2025-2026 BBA Amicus Committee is co-chaired by Ian Roffman of Nutter McClennen & Fish LLP and Emily Schulman of Harvard Law School.
