Immigration Consequences of Massachusetts Criminal Convictions

If you are not a United States citizen and you face criminal charges in Massachusetts, the stakes go beyond fines and jail time. A conviction — or in many cases even a guilty plea — can trigger mandatory deportation, permanent bars on reentry, and the destruction of everything you have built in this country. Your right to remain in the United States may matter more to you than any prison sentence.

At Erkan & Sullivan, P.C., we have spent decades at the intersection of Massachusetts criminal law and federal immigration law. Attorney Murat Erkan teaches continuing legal education programs on this precise subject and has handled cases in which the difference between the right disposition and the wrong one was the difference between a client staying in the United States and being permanently removed from it. We know what other lawyers miss — and we have won cases that were previously lost because of it.

READ THIS FIRST: This page explains how Massachusetts criminal convictions affect immigration status, what it means to vacate a conviction, and when it is possible to undo the damage of a prior guilty plea. If you or someone you love is facing charges — or is living under the shadow of a past conviction — call us at (978) 474-0054. Time is often critical.

The First Thing To Understand: Immigration Law and Criminal Law Operate on Different Rules

Most people assume that if a case ends without jail time — a probation sentence, a continuance without a finding, an administrative probation — there is no serious consequence. That assumption is wrong, and it has cost many people their right to remain in this country.

Federal immigration law defines “conviction” differently than Massachusetts criminal law. Under 8 U.S.C. § 1101(a)(48), a conviction exists for immigration purposes when two things are present: (1) a formal judgment of guilt, or a plea of guilty, or an admission of sufficient facts; and (2) some form of punishment, penalty, or restraint on liberty imposed by the judge.

This means probation — even administrative probation with no jail time — is a conviction for immigration purposes. The Massachusetts courts calling it a “favorable resolution” does not change what federal immigration law sees.

CRITICAL: CWOFs Count as Convictions: A continuance without a finding (CWOF) in Massachusetts is treated as a conviction under federal immigration law. The judge’s finding that guilt has been admitted, combined with any conditions imposed, satisfies the federal definition. Many defendants accept CWOFs believing they have avoided a conviction. For immigration purposes, they have not.

Which Massachusetts Crimes Trigger Immigration Consequences?

The most dangerous categories under federal immigration law are the following. Each can independently make a lawful permanent resident, visa holder, or undocumented person deportable — and can bar most or all forms of relief from removal.

Controlled Substance Offenses

Any conviction related to a controlled substance — possession, distribution, trafficking — can trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i). There is almost no exception for minor drug offenses. A single conviction for possession of marijuana (beyond 30 grams) is enough.

Drug distribution and trafficking offenses are also “aggravated felonies” under federal law — the most severe immigration category — which carry devastating consequences, including mandatory detention without bond, expedited deportation, and permanent inadmissibility.

Aggravated Felonies

“Aggravated felony” under immigration law (8 U.S.C. § 1101(a)(43)) does not mean what it sounds like. It is a specific federal list that includes many offenses that Massachusetts treats as ordinary felonies or even misdemeanors. Examples include:

• Drug trafficking convictions (including most distribution offenses)
• Crimes of violence with a sentence of one year or more (including suspended sentences)
• Theft or fraud offenses with a sentence of one year or more
• Sexual abuse of a minor
• Murder, rape, and other serious crimes

A person convicted of an aggravated felony is subject to mandatory deportation, is ineligible for cancellation of removal, is barred from asylum, and — if deported — faces a permanent bar on lawful reentry to the United States.

Crimes Involving Moral Turpitude (CIMT)

Crimes involving moral turpitude — offenses involving dishonesty, fraud, or conduct considered inherently immoral — can make a person deportable if committed within five years of entry or if the person has two or more such convictions at any time. Many assault offenses, theft crimes, and fraud-related charges fall into this category.

Firearms Offenses

Under 8 U.S.C. § 1227(a)(2)(C), virtually any firearms conviction triggers deportability. The statute is extremely broad and includes possession, carrying, and transfer offenses. For clients facing gun charges in Massachusetts, the immigration analysis must be part of the defense strategy from day one.

Domestic Violence and Protective Order Violations

Convictions for domestic violence crimes and violations of protective orders carry independent immigration consequences under 8 U.S.C. § 1227(a)(2)(E). These consequences apply regardless of how the underlying charge is classified under Massachusetts law.

What Your Prior Attorney May Not Have Told You: The “Guilty Filed” Disposition

One of the most important — and most overlooked — tools in criminal defense for non-citizen clients is the “guilty filed” disposition. This is a dispositional option available in Massachusetts courts that most defense attorneys do not know exists, or do not think to pursue.

Under federal immigration law, a conviction requires both (1) a plea or finding of guilt AND (2) some form of punishment, penalty, or restraint on liberty. Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). A guilty filed disposition places sentencing on hold indefinitely. Because no punishment, penalty, or restraint on liberty is imposed, there is no conviction for federal immigration purposes.

The Insight That Changes Everything: A guilty filed disposition and a two-year probationary plea can achieve the exact same criminal law result — no jail time, continued good behavior required — while producing entirely different immigration outcomes. The plea destroys your client’s immigration status. The guilty filed does not. The difference is knowing to ask for it.

In our experience handling post-conviction immigration cases, we have repeatedly found that prior counsel negotiated plea deals without understanding this option was available — or worse, told clients there was “no way” to avoid immigration consequences. That claim is often false.

We have obtained guilty filed dispositions in serious cases — including a matter that initially involved trafficking charges — where the client’s equities, combined with effective advocacy about immigration consequences, persuaded the court to impose a disposition that preserved the client’s right to remain in the United States.

Can a Prior Conviction Be Undone? Vacating Pleas in Massachusetts

If you or a family member already pleaded guilty to a Massachusetts criminal charge without being properly advised of the immigration consequences, it may be possible to vacate that plea. This is one of the most consequential — and most complex — areas of criminal defense.

Your Constitutional Right: Padilla V. Kentucky and Commonwealth V. Clarke

In 2010, the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, that defense attorneys are constitutionally required under the Sixth Amendment to advise non-citizen clients of the immigration consequences of a guilty plea. A lawyer who fails to give correct, specific immigration advice — or who gives affirmatively wrong advice — has rendered constitutionally deficient representation.

The Massachusetts Supreme Judicial Court has applied and extended this rule under Article 12 of the Massachusetts Declaration of Rights. In Commonwealth v. Clarke, 460 Mass. 30 (2011), and Commonwealth v. DeJesus, 468 Mass. 174 (2014), the SJC made clear that a general warning is not enough. Counsel must advise the client specifically about the immigration consequences of the particular offense — not simply say that deportation “might” happen.

When prior counsel failed to give that advice — or gave affirmatively wrong advice — a defendant has the right to seek to vacate the plea under Mass. R. Crim. P. 30(b) and, in cases where the plea judge failed to advise of immigration consequences, under G.L. c. 278, § 29D.

What You Must Prove To Vacate a Plea

To vacate a guilty plea on Padilla grounds, a defendant must establish:

• Deficient performance — that prior counsel failed to advise, or gave incorrect advice, about the specific immigration consequences of the plea; and
• Prejudice — that but for the deficient advice, there is a reasonable probability that a reasonable person in the defendant’s circumstances would have made a different decision about the plea.

On the prejudice question, Massachusetts courts recognize that for a non-citizen defendant, the right to remain in the United States “may be more important than any jail sentence.” Even a small chance of acquittal at trial can be sufficient to establish that a reasonable person would have rejected the plea. Commonwealth v. Lavrinenko, 473 Mass. 42 (2015).

The Judge’s Warning At The Plea Hearing Does Not Cure The Lawyer’s Mistake

One of the most common arguments the Commonwealth makes in opposing motions to vacate is that the plea judge warned the defendant that the plea “will” result in deportation. The SJC has repeatedly rejected this argument. A judge’s generic warning does not substitute for defense counsel’s constitutional duty to provide specific, individualized advice. Clarke, 460 Mass. at 48; DeJesus, 468 Mass. at 183.

In the real world, clients rely on their own attorneys — not the judge — when making the most important decisions of their lives. When a defense attorney specifically tells a client that the immigration warning “doesn’t apply” to their situation, and then the judge delivers a boilerplate warning that the plea “will” result in immigration consequences, a reasonable client will believe their attorney, not the court. That reliance is exactly what Padilla seeks to protect.

Results We Have Achieved For Our Clients

Words on a page do not capture what these cases mean to the people inside them. The following results illustrate the work we do in this area. Details have been generalized to protect client confidentiality.

CASE RESULT: Vacated Guilty Plea — Drug Distribution, Norfolk Superior Court

A lawful permanent resident from the Dominican Republic pleaded guilty in Superior Court to drug distribution and conspiracy charges in 2019. His attorney told him that receiving no jail time meant he would have no immigration problems. That advice was wrong — the plea subjected him to mandatory deportation as an aggravated felony. A prior attorney filed a motion to vacate that was denied. We undertook a comprehensive investigation, obtained affidavits from prior counsel, uncovered that plea counsel had been disciplined by the Board of Bar Overseers for providing the same incorrect immigration advice to other non-citizen clients, and demonstrated that an immigration-safe disposition — a “guilty filed” — had been available and could have been negotiated.

Outcome: The prosecution conceded our motion. The same prosecutor’s office that successfully opposed prior counsel’s motion agreed that our client was entitled to vacate his plea. As a result of our work, this client is able to remain in the United States with his wife and children.

CASE RESULT: Motion to Dismiss — Mid-Trial ICE Seizure, Boston Municipal Court

Federal immigration agents — including an agent who had participated in the underlying criminal investigation — coordinated with state police to seize our client in the shadow of the courthouse immediately after court adjourned, mid-trial, after a jury had been empaneled and opening statements delivered. The agents refused to identify themselves or disclose where the client would be taken. We filed an emergency motion to dismiss with prejudice, arguing that the government had engineered a mistrial by removing the defendant from the court’s jurisdiction during an ongoing jury trial, in violation of the Fifth and Sixth Amendments to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.

Outcome: The case was dismissed with prejudice, preventing the government from ever filing charges against our client again. This case is at the forefront of an emerging area of constitutional law involving the intersection of federal immigration enforcement and the right to trial by jury in Massachusetts courts.

Ice Enforcement and Pending Criminal Cases: What You Need To Know Now

Federal immigration enforcement activity has intensified significantly. Non-citizens with pending criminal charges in Massachusetts courts face a heightened risk of immigration detention during the pendency of their cases. The interaction between federal immigration enforcement and state criminal proceedings raises serious constitutional issues that our firm is actively litigating.

Key points to understand:

• ICE can — and in some cases will — attempt to detain a person with a pending state criminal case, even before that case is resolved.
• A motion to vacate a prior conviction does not automatically stop removal proceedings. ICE can proceed with deportation while a motion is pending.
• If you believe you or a family member may be targeted for immigration enforcement, retaining counsel immediately — before charges are resolved or before a detainer is lodged — is critical.
• Courts are battling with the issue of whether the government cannot remove a defendant from the jurisdiction of a criminal court mid-trial without violating constitutional rights. We are at the front of this problem in Massachusetts. As a result of our efforts, the government has agreed to refrain from this type of behavior. For now.

How We Approach Criminal Cases Involving Non-Citizen Clients

From the moment we are retained on a case involving a non-citizen client, immigration analysis is built into the defense strategy. It is not added as an afterthought when a plea is on the table.

Our approach includes:

• Identifying the immigration status of the client at the outset and understanding what categories of conviction would be catastrophic vs. manageable.
• Analyzing whether the charged offense, as written, constitutes a deportable offense under federal law — and whether there is any argument that it does not.
• Exploring available dispositions — including guilty filed, general continuance, CWOF (with understanding of its immigration risk), and outright dismissal — that would either avoid a federal law “conviction” entirely or minimize deportation exposure.
• Engaging immigration counsel early when the intersection of criminal and immigration law is complex or when a client faces a particularly serious immigration consequence.
• In post-conviction matters: conducting a full investigation of prior counsel’s representation, obtaining affidavits from plea counsel, analyzing what dispositions were available at the time of the original plea, and building the strongest possible record for a motion to vacate.

Frequently Asked Questions

Does a CWOF affect my immigration status?

Yes, in most cases. Federal immigration law treats a continuance without a finding as a conviction if guilt was admitted and any conditions were imposed. Courts have consistently held this. If you accepted a CWOF on a drug, theft, firearms, or domestic violence charge and you are not a citizen, you should consult with counsel about your immigration exposure.

My attorney told me I had nothing to worry about. Was that enough?

Not if it was incorrect. Under Padilla and Clarke, your attorney was required to give you specific, accurate advice about the immigration consequences of your plea — not a general reassurance. If your attorney told you that no jail time meant no immigration consequences, that advice was wrong. You may have grounds to vacate the plea.

Can I vacate a plea even if it happened years ago?

Potentially yes. Mass. R. Crim. P. 30(b) allows motions for new trial to be filed at any time. There is no strict time limit, though delay can affect the strength of the claim. The sooner you act, the better your position — witnesses are available, records are intact, and a motion filed before removal proceedings are completed is far more effective than one filed after.

What is the difference between deportation and inadmissibility?

Deportation (removal) applies to people who are already in the United States — including lawful permanent residents — and results in being physically removed from the country. Inadmissibility means being barred from entering or reentering the United States. A person deported for an aggravated felony conviction faces a permanent bar on reentry — meaning they can generally never return to the United States lawfully.

Can ICE deport me while my motion to vacate is pending?

Yes. A motion to vacate does not automatically stay removal proceedings. An Immigration Judge will generally not halt deportation solely because a state court motion is pending. If you are in removal proceedings and have a viable motion to vacate, we will work with immigration counsel to coordinate the timing of filings and ensure the strongest possible argument is made in both forums.

What is an “aggravated felony” under immigration law?

It is a defined category under 8 U.S.C. § 1101(a)(43) that includes dozens of offense types — not just serious violent crimes. Many offenses that Massachusetts classifies as misdemeanors can be aggravated felonies if a sentence of one year or more was imposed. A conviction for an aggravated felony results in mandatory deportation, ineligibility for almost all forms of immigration relief, and a permanent bar on reentry. If you have any conviction and are unsure whether it falls into this category, you should consult with counsel.

Talk to Erkan & Sullivan Today

If you are a non-citizen facing criminal charges in Massachusetts, or if you are living under the shadow of a prior conviction that may be affecting your immigration status, do not wait. The consequences of inaction can be permanent.

Murat Erkan teaches other lawyers how to handle these cases. Ryan Sullivan has litigated these issues through the Massachusetts courts. Together, they bring a depth of expertise in the criminal-immigration intersection that few firms in Massachusetts can match. Reach out to us today.