Removing Convictions to Avoid Immigration Problems
The number of deportations in the United States is up sharply since 2016, in fact it is soaring. This is why so many non-citizens who fear being seized for deportation or refused re-entry after taking a trip outside the United States and then attempting to return are, in record numbers, contacting immigration lawyers to either begin the process of trying to become American citizens or trying to make sure they can retain their legal status here.
Additionally, those with even seemingly minor criminal charges on their record are frequently told there is nothing that can be done for them in the immigration court as long their criminal record exists.
The cases can be heartbreaking where, for example, a non-citizen living here for decades who owns a home and business in the United States along with having an American spouse and American children may be ripped apart from that family and deported. In one recent case here in Massachusetts, a man who came to the United States when he was 6 months old and is now in his late 50s was deported despite the fact that his mother, who is in her 90s, and all his children, his many siblings, cousins, nieces, nephews, aunts and uncles are here. He cannot even speak the language of the country he is deported to, knows virtually no one there and cannot work there.
That is why the only alternative may be to hire an experienced criminal defense attorney in Boston, MA to try to un-do or vacate the previous guilty plea or admission in court.
This is not the way it was in the courts here in Massachusetts decades ago. Part of the reason may be that, before records were preserved online and computers spoke to each other, access to such records was greatly limited even between the governmental agencies and courts. Also, there were fewer deportation attempts and fewer consequences once an immigrant turned his life around and put his or her often decades-old criminal record behind.
The most common way for a non-citizen to try to withdraw a guilty plea in Massachusetts is through what is known as a motion for a new trial. When such a motion is granted, the typical reason is that, at the time of the plea, some procedure during the actual plea was not properly followed such as one was not specifically informed of the Constitutional rights they were giving up when they either pled guilty or admitted to an offense. In order for a guilty plea to be valid, it must be made knowingly, intelligently and voluntary. A defendant should not later on learn that there are consequences to making the plea of which they were never informed of such possibility in advance.
Perhaps the non-citizen got bad advice from his or her counsel. It is not uncommon that someone will say that they pleaded guilty to a crime that they were not guilty of because they were perhaps a teenager who knew nothing about legal procedure and were told by their lawyer that, if they only pleaded guilty, the case would be over and they would not go to jail. The person who pleaded guilty to an offense then learned, perhaps years later, that by doing so, they eventually sealed their fate by ensuring that they would be deported or barred from becoming a citizen and there was virtually nothing they could do about it.
The reason it can be tough to ever withdraw a plea once made is that at the time of the plea, Massachusetts, similar to the courts in every other state, has one sign a piece of paper stating all the rights one is giving up such as the right to a trial and also gives a variety of warnings such as the immigration consequences of a guilty plea if not a citizen, The judge will then, on the record, verbally go over these waivers of rights and warnings with the defendant before a plea is accepted. The courts do this because they do not want someone to admit to or plead guilty to something, then come back later saying they didn’t know what they were doing when they pleaded guilty because they were, perhaps, nervous and nothing was explained to them. The court would then pull out the signed sheet and the recorded audio showing that the person repeatedly confirmed they knew they were giving up their right to trial, knowingly, willingly and voluntarily.
One of the reasons all courts without exception insist on these waivers of rights by the defendant before accepting a plea is because only approximately 6 percent of all criminal charges in American courts result in a trial. The majority plead guilty or admit to the offense unless the case is dismissed earlier. Courts do not want to unnecessarily have to constantly reopen and proceed all over again on cases that were already disposed of and closed.
Still, one shouldn’t be completely discouraged since a number of these requests to withdraw a plea are successfully granted. Occasionally, it is discovered that the official court paperwork is missing or left blank or filled out erroneously and this might be a reason to withdraw the plea. Also, there are times when the judge or the defense lawyer, indeed, did not adequately explain to the defendant the rights he or she were giving up when they did the plea.
Additionally, sometimes a person can withdraw a plea when it turns out that they were not fluent in English yet had not been provided an interpreter to translate for them and help them completely understand what went on in court.
Recently, a great many motions to withdraw a guilty plea have been granted in cases where a defendant who is not a citizen was not adequately explained his or her immigration rights and now claim to be surprised that the plea they made in the past is now the cause of them being deported or facing other immigration consequences.
The reason many of these cases have been particularly successful is because of a decision that came down several years ago called Padilla v. Kentucky. That case said that it is no longer sufficient if the non-citizen doing the plea was only warned in a general way that a plea might have immigration consequences such as deportation, preventing one from ever becoming a citizen or would block one’s readmission into the United States if they travel outside it. The case said that attorneys and the court must advise a person that their guilty plea clearly and unambiguously “will” result in their deportation if the particular law they broke makes deportation or other very specific punishments inflexibly definite. This is a new law that can be applied retroactively. That means that, even if you had an excellent attorney who did everything right for your plea years ago under the law as it existed before the law changed under the Padilla case, you will still have an opportunity to get your guilty plea reversed and thrown out.
There are a number of reasons why a plea of guilty may be withdrawn which may help to avoid immigration consequences even many years later and a consultation with an experienced criminal defense attorney can advise you on your possibilities for achieving this. This could possibly clear the path for either preventing deportation, achieving legal status or becoming a citizen.
Requests for a “restraining order” which in Massachusetts is often called a “209A order” are exceeding common and among the very most frequently made requests in the courts of Massachusetts.
In Massachusetts, a 209A order is a civil court order intended to provide protection from physical harm caused by force or threat of harm from a family or household member or even someone in a casual dating relationship. While the 209A proceeding is civil in nature, violations of 209A orders are crimes punishable by fines and/or incarceration. So, if someone has a restraining order granted against them, they still might not have a criminal record, but they could possibly be on the road to getting a criminal record if they are found to violate this civil order.
These orders are used frequently in divorce, custody, or other domestic disputes. They are a very necessary form of protection for abused victims, but there are times when they are used for spite or vengeance knowing that they don’t cost anything and are relatively easy to obtain as usually no particular evidence or proof is needed and they can be granted just on the mere claim or say-so of the complaining person. There have been times when the person seeking the restraining order might, in reality, actually be the abuser and now, ironically, wants a further weapon to use against the real victim.
Restraining orders are routinely granted against:
- a spouse or former spouse
- a present or former household member
- a relative by blood or a present or former relative by marriage
- the other parent of a minor child of the Plaintiff
- a person with whom the Plaintiff has or had a dating relationship no matter how casual
They can be obtained from any Court in Massachusetts. An emergency 209A Order can be obtained through any police department after court hours, on weekends and holidays. One does not need an attorney to file for a 209A Order, the person requesting the order (also known as the Plaintiff) will receive help from court personnel and Victim Witness Advocates (employees of the District Attorney’s Office whose sole job is to assist alleged victims with court procedures and filing criminal charges). There is no charge for filing for the order. Criminal charges are not necessary to obtain a 209A order, but Victim Witness Advocates often encourage the filing of criminal charges as well.
What a restraining order can compel one to do
- The person requesting the order may request, among other things, that the judge order that the Defendant:
- Stop or refrain from abuse of Plaintiff or a child in Plaintiff’s custody
- Have no contact with the Plaintiff or a child in the Plaintiff’s custody
- Vacate or move out of the house or apartment where the Plaintiff resides, even if the lease or title is in the Defendant’s name
- Stay away from the Plaintiff’s place of employment
- Pay support to the Plaintiff or a child in Plaintiff’s custody, if there is an obligation to support
- Pay Plaintiff’s medical costs, lost wages, cost of changing locks, attorney’s fees, and other expenses resulting from the alleged abuse
- Attend a Batterer’s Intervention Program
A person who applies for a 209A restraining order can get a temporary one granted by going before a judge and the accused may not even be in attendance in court to give argument on why it should not be granted. However, if the judge grants the temporary order, then the accused must be notified and given a right to a hearing within 10 days to challenge it at a court hearing
Once the 209A order is granted, it can be violated for a variety of reasons such as indirect contact by giving a message through a third party such as a mutual friend, sending an email or a text message or forwarding a piece of mail. Even if the accuser were to invite the accused over, the accused could not accept as long as the court order is in place. If one runs into the person who requested restraining order protection by accident at a restaurant or on the street, it is advisable that the accused immediately turn away and leave.
Have you been served with a restraining order in Massachusetts? Contact our criminal defense law firm today for a free legal consult.
Unlike many other states, Massachusetts law does not generally recognize expungement which is very different from sealing. Expungement would be preferable as it can essentially erase a criminal record, including police reports and arrest records as if it never existed. On the other hand, simply getting a record sealed doesn’t wipe clean a record; it merely keeps it confidential on some level. A sealed record in Massachusetts may keep most employers from learning of its existence, but there are exceptions. Police and courts will likely be aware of the record.
Still, it is important to do so. It could be catastrophic to one’s future if, let’s say, because of one bit of bad behavior in one’s youth or many years ago, one is made unemployable forever or prevented from furthering one’s education.
Sealing is almost never automatic.
Three Main Ways to Seal a Criminal Record
1. Some convictions or admissions can be sealed after a waiting period.
2. Cases that were dismissed without probation or resulted in a not guilty finding may be eligible for sealing.
3. A recorded offense that is no longer a crime may be sealed.
It is a good idea to request a recent CORI record of the defendant prior to attempting to seal records so that the eligibility for sealing is clear. The following is an overview of the law.
Sealing after a waiting period
- Under the present law, the waiting period to seal felonies is now 10 years. (A few years back, it was 15.)
- Under the present law, the waiting period to seal misdemeanors is now lessened to 5 years. (A few years back, it was 10.)
- Under the law the clock begins to toll (a) for those incarcerated, on the day one is released from custody or (b) if there is no incarceration, on the date of disposition.
- Any subsequent conviction causes the 5 or 10-year waiting period to begin tolling all over again. In other words, it must be 5 or 10 years from the date of the latest conviction in order to be eligible to get the entire rest of the record sealed.
The procedure is to submit a single page petition form, available on the web, to the Office of the Commissioner of Probation.
Sealing after a non-conviction
- In the case where there is no conviction, one must go in front of a judge at the court directly but can do so immediately without any waiting period. This pertains to cases that resulted in an acquittal at trial, no probable cause, or some kind of a dismissal. Under the law, for the first time, this includes a case that was dismissed after a continuance without a finding.
- In this instance, records may be sealed only after the court has made a specific, on the record finding that sealing is necessary for “good cause.”
- The petitioner must file a specific petition form and a motion/affidavit form available from the court that must be posted publicly at the court. It is a good idea to also submit a memorandum.
- A judge may rule based solely on the paperwork, but more frequently the petitioner is afforded a hearing where reasons can be made directly to a judge
- Sealing a record of an offense that is no longer a crime
If an offense that is on the defendant’s record has been decriminalized, this may also be sealed by submitting a single page petition form, available on the web, to the Office of the Commissioner of Probation. An obvious example would be those with a record for possession of marijuana.
Exception to sealing statute
- A person convicted of a sex offense is eligible to have the record sealed after 15 years after the disposition including supervision or after any incarceration is completed
- (a) if they have no duty to register as a sex offender and;
- (b) if they were never, at any time, classified as Level 2 or 3 sex offender.
- There are some crimes that can almost never be sealed concerning crimes against public justice (such as perjury, false reports, witness intimidation, disrupting court proceedings, escape from custody, resisting arrest), and unethical conduct concerning public officials and employees (such as various forms of corruption) can never be sealed. Additionally, certain firearms offenses are never sealable.
Who has access to your records?
- Employers, landlords and professional licensing authorities especially concerning firearms will have access to criminal records if they have signed authorization from the person with the record
- Special classes of people are permitted access to Massachusetts reports including non-convictions. These include those who run long-term care facilities over their employees and volunteers; home and community care for the elderly and disabled; and victim/witnesses. In certain child custody and visitation or domestic abuse and restraining order matters where safety is at stake there is even a right to look at sealed cases if a court order is obtained.
- Almost any office involved in the best interests of children including the Department of Children and Families, Department of Social Services, school bus drivers, camps, early education programs, foster care, etc.
- Municipalities may conduct criminal record checks in order to license particular designated positions and to assist their housing authorities in screening
- Law enforcement agencies have an automatic and immediate right to all CORI records included sealed records.
- Any private individual may make a written request to view the CORI of any other person concerning (a) felony convictions punishable by 5 years of imprisonment until 2 years after release from custody; (b) a misdemeanor until a year after return from incarceration; (c) any conviction that includes incarceration until any parole or probation is completed.
- If an individual is eligible to have a conviction sealed—10 years after a felony or 5 years after a misdemeanor– but does not take that action to seal, most employers still no longer have access to such records after that time period.
Record questions barred on initial employment applications
- Under the so-called “ban the box” rule, an employer is blocked by law from asking a job applicant on an initial written employment application to check off whether they have any criminal record. The exception is when state or federal law prohibits a specific job from being filled by a convicted individual. For example, under federal law, banks are barred from hiring people convicted of certain offenses, so, therefore, may inquire about a criminal record right from the start.
- After the initial application, employers do, eventually, have the right to inquire about the applicant’s criminal history such as during the job interview
- The employer must give the applicant a copy of his or her criminal record before questioning that person about their criminal record. If a person is denied a position because of their criminal record, they must also be provided with that criminal record.
- Correcting errors in ones CORI and also learning who accessed it
There is a procedure for correcting errors and even mistaken identity on one’s criminal record that an experienced criminal defense attorney can help you with.
Dissemination of non-convictions
- Non-convictions such as charges that resulted in acquittals or dismissals are not subject to dissemination except in the few instances where there is delineated statutory access to the non-conviction.
- Pending cases may be viewed.
- Continuances without a finding are to be treated as dismissals once they are dismissed, but not during the period pending that dismissal. Until the date of dismissal, a continuance without a finding is subject to be viewed.
- Visibility of sealed records and non-convictions
Previously, notification was given that a sealed record existed even though the contents of that sealed record could not be viewed. Currently, it will, usually, not be revealed whether a sealed file exists.
Previously, until a record was sealed, non-convictions (dismissal and not guilty verdicts) would be visible in a search. Under the current law, non-convictions will not be revealed in searches.
An experienced criminal defense attorney can help you seal your record. Contact me today for a free consultation to discuss the sealing of your criminal records in Massachusetts.
A charge of some form of sexual assault is one of the very most serious and explosive charges that can be leveled against a person. Not only can one face serious prison time, but it is the kind of charge that may carry a stigma for life as one is labeled a sex offender and will likely be listed on the Sex Offender Registry.
In Massachusetts, other than the more serious charges such as rape or assault with intent to rape, a sexual assault is generally charged as Indecent Assault and Battery.
It differs from simple assault and battery which is defined as an unwanted or “unconsented touching” even if it is without force or apparent injury. If one intentionally or recklessly punches, grabs, slaps, spits or throws some substance on another person, or has any kind of unwelcome physical contact that would be simple battery.
But the even more serious offense of indecent assault and battery is charged generally depending on the specific area of the body that is touched or the specific act that the accused person does. There are no specific touched areas of the body as defined by the law that qualify an assault and battery as an indecent assault and battery as the law merely defines decency as “fundamentally offensive to contemporary standards of decency.” So, such charges can be subject to interpretation. But most indecent assault and battery cases have to do with the touching of body parts generally recognized as private such as the genital area, the buttocks or breasts.
So, essentially, the prosecution will have to prove three elements beyond a reasonable doubt in order to convict someone of an indecent assault and battery:
- That the alleged victim was touched intentionally.
- That the touching was indecent.
- That the touching was without consent and unwanted.
There can be even more serious charges depending on the alleged victim. One can be charged with indecent assault and battery on a child; indecent assault and battery on an elder (60 or over) or person with a disability; or indecent assault and battery on a person with an intellectual disability.
Potential truthful defenses to a charge of indecent assault and battery:
- Accident. Since someone who commits an indecent assault and battery must do so purposely with intent, it is a defense if such a touching genuinely happens by accident. For example, this could occur in a jam-packed trolley where the brakes are unexpectedly jammed-on and the riders may be thrown forward and unintentionally touch.
- Consent. There could be an incident where the alleged victim had consented to a sexual act and, only after the fact, regretted it or became angry with the sexual partner. Maybe after the act, the accused no longer wanted to see the alleged victim or perhaps the alleged victim learned that the supposed boyfriend had been unfaithful and therefore now had regrets. There are also issues concerning a victim’s inability to consent. If someone is intoxicated developmentally disabled, mentally incompetent, or under the legal age of consent, the fact that they may have, indeed, consented still might not be recognized as legal consent. The issue might be whether you knew or reasonably should have known that the other party was impaired in some way, although in the case of underage victims the fat that one didn’t know that they were underage is not a defense.
- Motive. As noted above, is there some apparent reason that the alleged victim would falsely accuse someone of the crime of indecent assault and battery? Are they in a child custody battle or divorce and can use this false charge against the other party to gain advantage in the other proceedings? Do they want revenge from a failed relationship, an unfaithful partner, feel very guilty about the act or did their spouse or other partner find out about the sex so now the victim is falsely claiming that it was not their fault and done against their will? Does any motive exist for someone to falsely make these charges?
- Tainted testimony. Particularly in the case of child testimony, there are a variety of ways that they can either be directly pressured to make false allegations or, particularly in some situations where the child is officially interviewed by professionals, interviewed in a way that is very suggestive. Children are impressionable and are vulnerable to biased questioning.
- Challenged evidence. Particularly in the case of indecent assault and battery on a stranger, there is also, occasionally, tainted evidence that is inaccurate. There might be a very flawed identification procedure of the accused through a line-up or photo array. DNA can be challenged and may scientific or forensic tests on physical evidence can be contaminated or mishandled. This is where an experienced veteran criminal defense attorney can make a difference on your case. Evidence can be uncovered and investigated that will help the accused along with witnesses found and new previously unseen evidence uncovered.
The consequences of a conviction on any sex offense can potentially be severe even beyond a lengthy prison sentence. It can destroy ones reputation for life as the public including neighbors and family reviles those who are convicted of these among the most scorned charges. A number of attorneys even refuse to defend the accused against such toxic charges. This is why an experienced criminal defense attorney dedicated to justice and unafraid to aggressively defend against such false accusations is crucial.
Have you been charged with sexual assault in Massachusetts? Contact us today for a free legal consult.
Guarding Against Potential Damage to Your Future
When it comes to prosecuting college and high school students, there is a recent trend that has been developing in schools across the Commonwealth of Massachusetts. It used to be that when a young person got in trouble on school grounds, the school dealt with it as an internal private matter. The problem remained in-house, so to speak. Yes, there might be serious consequences for the student, but the school handled it on its own grounds through its own disciplinary policy. Whether it was vandalism, theft, bullying, drugs, or schoolyard fighting, a school might mete out punishments or work on the problem with the student.
But, despite all the penalties and corrective measures, there was an underlying principle that, even though a student might face severe consequences at school, their future must not be destroyed. This is because referring all school misbehavior to the criminal justice system and having students taken away in handcuffs to police stations and courts and even jail could result in permanent punishment. Punishment that goes on for the rest of their lives. This is because, once a student gets a criminal record, this could forever and all time result, in their
- Not getting into the college of their choice;
- If they already are in college, not getting into graduate school to further their education;
- No longer being eligible for financial aid so having to drop out of college;
- Again and again being refused employment and having their dreams and goals of what they wanted to accomplish in life disappear
Yes, students need to understand that actions have consequences and a price must be paid for bad behavior. They can’t expect to behave badly and always walk away scot-free. So have them face the music, endure the consequence, learn the lesson, and then move ahead. But for those in their teens or early twenties who commit a one-time act of poor judgment or foolishness or just not thinking . . . and have them pay for it into their fifties and sixties and seventies is extreme to the point of being bizarre. This is because it doesn’t just ruin the student’s future, but it ruins the future of America as we good law-abiding citizen can never take advantage of the talents of a student with a once-bright future who never became a doctor or a job-creating business person or government worker or useful scientist because of the one dumb action they took as, let’s say, a nineteen-year old college sophomore or did some underage drinking.
With the almost overwhelming multitude of colleges and places of higher education in Massachusetts that now routinely pass off their disciplinary infractions to the police, there is more of a need than ever for effective attorneys who understand the unique issues of young people. Young people often act foolishly on impulse in a way that they will not once they mature. Scientific studies have shown that the brains of young people are different than adults, that they will change and therefore should not be permanently written-off before they have even reached maturity.
An effective attorney experienced in representing students will use a variety of methods to do everything possible to prevent them from getting a criminal record that could extinguish their once-bright futures before they ever get a chance to launch them. There are ways to creatively assist a student who is charged with a crime from getting a criminal record through diversion programs and alternatives to a criminal record. Such alternatives could consist of participating in programs, getting counseling, doing community service or an assortment of other methods. There was a group of college students who threw a rowdy noisy destructive party with illegal kegs of beer who avoided criminal records by performing a great deal of community service; a college student charged with reckless driving and some other motor vehicle offenses who got his case dismissed after having to take a brains-at-risk course that links the choices made behind the wheel to the devastating effect of traumatic brain injuries they might cause others or suffer themselves; and the student shoplifter who had the case dismissed by attending a special shoplifting lecture.
An effective attorney who understands and then zealously champions young people is a must for students who, despite the fact that they may have had a one-time incident of using poor judgment, can still turn their lives around rather than having their still bright futures extinguished with a permanent criminal record.
Are you a student in Massachusetts or parent of a student facing criminal charges? Contact us today for a free legal consultation.