SJC: When Immigration Advice Is Unclear Before a Change of Plea, Defendants May Be Entitled to an Evidentiary Hearing

In a significant decision for noncitizen defendants and criminal defense attorneys alike, the Massachusetts Supreme Judicial Court (SJC) held that a defendant may be entitled to an evidentiary hearing when there is ambiguity about whether plea counsel properly advised him that deportation was virtually mandatory.

In Commonwealth v. Jorge L. Santana, SJC-13720 (Feb. 4, 2026), the Court vacated the denial of a motion to withdraw a guilty plea and remanded the case for further proceedings.

The decision reinforces a critical principle: when federal immigration law makes deportation practically inevitable, defense counsel must clearly communicate that reality — and courts may not resolve factual disputes about what advice was given without a hearing if the record is ambiguous.

The Background: A Drug Conviction and Removal Proceedings

In 2018, Jorge Santana, a lawful permanent resident originally from the Dominican Republic, pleaded guilty in the Salem District Court to possession of a Class A substance (heroin) with intent to distribute.

Under federal immigration law, a conviction for a controlled substance offense like this — other than simple possession of small amounts of marijuana — renders a noncitizen deportable. For drug distribution offenses, deportation is “virtually mandatory” and relief is extremely limited.

Santana received a suspended sentence. For more than two years, nothing happened.

Then, in February 2021, while returning from travel abroad, he was detained by immigration officials and placed into removal proceedings based on that conviction.

He later filed a motion to withdraw his guilty plea, arguing that his attorney had failed to inform him that deportation was effectively automatic.

The Legal Issue: What Must Counsel Tell a Noncitizen Client?

The Sixth Amendment — and Article 12 of the Massachusetts Declaration of Rights — require defense attorneys to provide effective assistance of counsel.

Since the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky, defense counsel must advise noncitizen clients whether a plea carries a risk of deportation. Massachusetts adopted and expanded that principle in Commonwealth v. Clarke and later clarified it in Commonwealth v. DeJesus.

Where federal immigration consequences are clear and deportation is practically inevitable, counsel must explain that reality in language the client can understand.

It is not enough to say that a defendant is merely “subject to” deportation if, in fact, deportation is virtually certain.

What Happened in Santana’s Case?

At the plea hearing, the judge gave the standard immigration warnings required by statute and rule.

The judge also asked defense counsel whether he had discussed immigration consequences with his client pursuant to Clarke. Counsel answered yes.

Years later, in support of Santana’s motion to withdraw the plea, plea counsel submitted an affidavit stating that he would have told Santana he was “subject to deportation,” but not that deportation was automatic, mandatory, or that he would be ineligible for immigration relief.

The motion judge — who was also the plea judge — denied the motion without holding an evidentiary hearing. The judge found counsel’s affidavit not credible because it contradicted counsel’s earlier representation at the plea colloquy that he had complied with Clarke.

The Appeals Court affirmed.

The SJC disagreed.

The SJC’s Key Holding: Ambiguity Requires a Hearing

The Supreme Judicial Court vacated the denial of the motion and remanded the case for further proceedings.

The core of the Court’s reasoning was this:

Counsel’s statement at the plea hearing that he had advised the defendant “pursuant to Clarke” was not necessarily inconsistent with his later affidavit stating he only advised that the defendant was “subject to” deportation

Why?

Because prior cases used varying language to describe counsel’s duty — including references to a “risk” of deportation or being “subject to” deportation. Only later did Massachusetts law clarify that when deportation is virtually automatic, counsel must convey that it is presumptively mandatory.

In other words, the record was ambiguous. And when there is ambiguity about what advice was given — particularly where an affidavit supports the defendant’s claim — a judge cannot resolve the issue on paper alone.

An evidentiary hearing may be required to determine:

• What exactly was said,

• Whether the advice was constitutionally sufficient, and

• Whether the defendant was prejudiced.

The SJC emphasized that while deference is owed to a motion judge — especially one who was also the plea judge — that discretion is not “boundless.” A credibility determination cannot rest on an assumed contradiction that may not actually exist 10-011-26.

What This Means for Noncitizen Defendants

This decision reinforces several critical points:

1. Generic Warnings Are Not Enough

Judicial warnings about possible deportation do not substitute for counsel’s constitutional obligation to give accurate, specific advice 10-011-26.

2. “Subject to Deportation” May Be Insufficient

When federal law makes deportation practically inevitable, counsel must convey that reality clearly.

3. Credibility Disputes Often Require Hearings

If a defendant and counsel submit affidavits raising a substantial issue about deficient advice, courts may need to hold an evidentiary hearing rather than resolve the matter on the written record alone.

Why This Case Matters in Massachusetts

Massachusetts courts have long taken immigration consequences seriously. For many noncitizen defendants, preserving lawful status in the United States is more important than avoiding jail time.

Commonwealth v. Santana does not guarantee that the defendant will ultimately prevail. He still must prove:

• Counsel’s performance fell measurably below that of an ordinary fallible lawyer, and

• He was prejudiced — meaning he would have rejected the plea had he been properly advised 10-011-26.

But the decision makes clear that where the record leaves room for doubt, defendants are entitled to a meaningful opportunity to prove their claim.

The Bottom Line

For defense attorneys, the lesson is simple:
When deportation is virtually mandatory, say so — clearly, directly, and unequivocally.

For noncitizen defendants, Santana confirms that if your attorney failed to fully explain the immigration consequences of a guilty plea, Massachusetts law may provide a path to challenge that plea.

If you or a loved one are facing deportation as a result of pleading guilty to criminal charges , it is critical to consult an attorney to explore whether the plea attorney gave proper advice before the change of plea was taken.

Immigration consequences are not merely collateral consequences. In many cases, they are the most serious consequences in the case.

If you are not a United States citizen and are facing criminal charges, the immigration consequences of a guilty plea can be devastating — and in some cases, virtually automatic. As Commonwealth v. Santana, SJC-13720 (Feb. 4, 2026) makes clear, generic warnings are not enough when deportation is practically inevitable.

At Benzaken, Sheehan & Wood, LLP, we understand that for many noncitizen clients, avoiding deportation is more important than even avoiding jail. We carefully evaluate every case not only for its criminal exposure, but also for its immigration consequences — and we fight to protect both your freedom and your future in the United States.

Call Benzaken, Sheehan & Wood, LLP today at (508) 897-0001 for a confidential consultation.