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SJC-12040

COMMONWEALTH vs. FRANK VALDEZ.1

Middlesex. April 4, 2016. - August 17, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.2

Practice, Criminal, Plea, Presumptions and burden of 

proof. Alien.

Indictment found and returned in the Superior Court 

Department on September 20, 1988.

A motion to withdraw a guilty plea, filed on November 4, 

2013, was considered by Kathe M. Tuttman, J., and a motion for 

reconsideration was also considered by her.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Scott W. Kramer for the defendant.

Jamie Michael Charles, Assistant District Attorney, for the 

Commonwealth.

1 Also known as Franklin Falcon and Franklin Falcone.

2 Justice Cordy participated in the deliberation on this 

case and authored the concurring opinion prior to his 

retirement. Justices Spina and Duffly participated in the 

deliberation on this case prior to their retirements.

 
2

Jennifer Klein & Wendy S. Wayne, Committee for Public 

Counsel Services, for Committee for Public Counsel Services, 

amicus curiae, submitted a brief.

GANTS, C.J. Under G. L. c. 278, § 29D, where a judge fails 

to advise a defendant during the plea colloquy that conviction 

may have the consequence of exclusion from admission to the 

United States, the conviction must be vacated upon motion of the 

defendant if the defendant shows that his or her conviction "may 

have" that consequence. The issue on appeal is what the 

defendant must show to establish that his conviction "may have" 

the consequence of exclusion from admission to the United 

States. We conclude that a defendant satisfies this burden by 

showing (1) that he has a bona fide desire to leave the country 

and reenter, and (2) that, if the defendant were to do so, there 

would be a substantial risk that he or she would be excluded 

from admission under Federal immigration law because of his or 

her conviction. Because we conclude that the defendant has met 

this burden, we vacate the defendant's conviction and remand the 

case for a new trial.3

Background. The defendant was born in the Dominican 

Republic and is a citizen of that country. In 1985, he was 

admitted to the United States as a lawful permanent resident 

3 We acknowledge the amicus brief submitted by the 

Immigration Impact Unit of the Committee for Public Counsel 

Services.

 
3

alien. In January, 1989, he pleaded guilty in the Superior 

Court to an indictment alleging larceny of a motor vehicle, in 

violation of G. L. c. 266, § 28, and was sentenced to a prison 

term of five years at the Massachusetts Correctional Institution 

at Concord. 

The defendant is now a resident of Connecticut and owns his 

own business selling automobiles. Since 1997, he has been in a 

relationship with a citizen of the United States, with whom he 

has three children. No immigration proceedings have been 

commenced against the defendant by Federal authorities.

At some time before September 27, 2013, the defendant 

retained an immigration attorney, Nareg Kandilian, to advise him 

regarding his desire to become a United States citizen and to

travel outside the United States. He told Kandilian that he 

wished to see friends and family in the Dominican Republic that 

he had not seen in many years, but feared that, if he were to 

leave the United States, he would be deemed inadmissible and 

placed into removal proceedings upon his attempt to reenter. 

Kandilian reviewed the docket information in this case and the 

defendant's board of probation record. The attorney concluded

that, because larceny of a motor vehicle is a "crime involving

moral turpitude" punishable by imprisonment for more than one 

year, if the defendant were to travel outside the United States 

and attempt to reenter, he would be found inadmissible under 8 
4

U.S.C. § 1182(a)(2)(A)(i)(I) (2012), and removal proceedings 

would be initiated against him.4 The attorney also concluded

that the defendant was convicted of an "aggravated felony" under 

8 U.S.C. § 1101(a)(43)(G) (2012) and is deportable under 8 

U.S.C. § 1227(a)(2)(A)(iii) (2012). The attorney further

concluded that the defendant is deportable under 8 U.S.C. 

§ 1227(a)(2)(A)(i), because the defendant's offense is a crime 

involving moral turpitude that was committed within five years 

of his admission to the United States.

To avoid these consequences, the defendant, through 

counsel, moved to withdraw the guilty plea and vacate the 

conviction, claiming that the judge accepted his plea without 

advising that his conviction "may have consequences of 

deportation, exclusion from admission to the United States, or 

denial of naturalization, pursuant to the laws of the United 

States," as required by G. L. c. 278, § 29D. In support of his 

motion, the defendant filed affidavits from Kandilian and 

himself, and a memorandum dated March 2, 2011, from John Morton, 

Director of United States Immigration and Customs Enforcement

(ICE), to all ICE employees ("Morton memorandum"). In the 

4 The Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 unified exclusion and deportation 

proceedings under a single system of "removal proceedings." See 

Pub. L. No. 104-208, 110 Stat. 3009 (1996); 12 U.S.C. § 1229a

(2012). The term "exclusion" is no longer used by immigration 

authorities but is instead referred to as "inadmissibility."

 
5

memorandum, Morton declared that ICE "only has resources to 

remove approximately 400,000 aliens per year, less than [four]

percent of the estimated illegal alien population in the United 

States," and therefore "must prioritize the use of its 

enforcement personnel, detention space, and removal resources to 

ensure that the removals the agency does conduct promote the 

agency's highest enforcement priorities, namely national 

security, public safety, and border security." He identified 

"aliens convicted of crimes, with a particular emphasis on 

violent criminals, felons, and repeat offenders," among those 

given the highest priority for removal. "For purposes of 

prioritizing the removal of aliens convicted of crimes," he 

directed ICE personnel to refer to offense levels, "with Level 1 

and Level 2 offenders receiving principal attention." Level 1 

offenders include "aliens convicted of 'aggravated felonies,' as 

defined in [8 U.S.C. § 1101(a)(43)]." Morton also emphasized 

the need "for ICE employees to exercise sound judgment and 

discretion consistent with these priorities," and noted that 

"[p]articular care should be given when dealing with lawful 

permanent residents, juveniles, and the immediate family members 

of [United States] citizens."

In support of its opposition to the motion, the 

Commonwealth filed an affidavit from the then retired plea 

judge, who stated that he "invariably" informed a defendant that 
6

"the guilty plea might lead to his or her deportation or prevent 

him or her from becoming a naturalized citizen," and that he 

would have given the defendant these warnings in accordance with 

his invariable practice. He also stated, "At some point after 

1988, I added a warning that the guilty plea might also prevent 

reentry into the United States, but I cannot recall precisely 

when I did so." He noted that he reviewed the plea colloquy he 

conducted on November 16, 1988, in a different case involving a 

different defendant, and that colloquy included the deportation 

and naturalization warnings, but not the warning regarding 

reentry.

The motion judge, based on the affidavits alone, found that 

the Commonwealth had met its burden of showing that the 

defendant had been properly advised at the plea hearing that his

guilty plea could subject him to deportation or denial of 

naturalization, but had not met its burden of showing that he 

had been advised that his plea could subject him to exclusion 

from admission to the United States should he leave the country 

and attempt to reenter. The judge nonetheless denied the motion 

because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010), 

she found that the defendant "has not established that he would 

be subject to an express written policy of exclusion should he 

choose to leave the United States and desire to re-enter," and 

therefore "has shown no more than a hypothetical risk" of 
7

exclusion. The defendant filed a motion for reconsideration, 

which the judge also denied; the defendant then timely appealed

from both orders.

The Appeals Court affirmed in a published opinion, but 

rested its decision on a different ground. Commonwealth

v. Valdez, 88 Mass. App. Ct. 332 (2015). The court agreed with 

the motion judge that the Commonwealth had failed to prove that 

the defendant received the required warning regarding exclusion 

from admission to the United States. Id. at 332. It recognized 

that the defendant had been convicted of a crime involving moral 

turpitude and "very likely would be excluded from reentry if he 

travels outside the United States." Id. at 336. It also 

recognized that, because he had been convicted of an aggravated 

felony, he is deportable under 8 U.S.C. 

§ 1227(a)(2)(A)(iii). Id. But the court concluded that the 

defendant had failed to meet his burden of showing that "he 

faces the consequence of exclusion," id. at 335, because he "has 

not been excluded from the United States," id. at 332; "there is 

no pending proceeding to exclude him from the United 

States," id. at 338; and there is no "pending deportation 

proceeding . . . that would increase the likelihood that he 

would be excluded." Id. We granted the defendant's application 

for further appellate review.
8

Discussion. When the Legislature enacted St. 1978, c. 383, 

in 1978, inserting § 29D into chapter 278 of the General Laws, 

it took great pains to ensure that defendants were informed that 

their plea of guilty, admission to sufficient facts, or plea of 

nolo contendere may have adverse immigration consequences. 

See Commonwealth v. Villalobos, 437 Mass. 797, 805 (2002) 

(entire purpose of statute is to ensure that defendants entering 

pleas are made aware of potential for adverse immigration 

consequences).5

 The Legislature set forth in the statute the 

5

 The full text of G. L. c. 278, § 29D, as inserted by St. 

1978, c. 383, is as follows:

"The [c]ourt shall not accept a plea of guilty or 

nolo contendere from any defendant in any criminal 

proceeding unless the [c]ourt advises him of the 

following: 'If you are not a citizen of the United 

States, you are hereby advised that conviction of the 

offense for which you have been charged may have the 

consequences of deportation, exclusion from admission 

to the United States, or denial of naturalization, 

pursuant to the laws of the United States.' The 

defendant shall not be required at the time of the 

plea to disclose his or her legal status in the United 

States to the court.

"If the [c]ourt fails so to advise the defendant, 

and he later at any time shows that his plea and 

conviction may have one of the enumerated 

consequences, the [c]ourt, on the defendant's motion, 

shall vacate the judgment, and permit the defendant to 

withdraw the plea of guilty or nolo contendere, and 

enter a plea of 'not guilty.' Absent a record that 

the [c]ourt provided the advisement required by this 

section, the defendant shall be presumed not to have 

received the required advisement."

 
9

precise language of the warning that the judge was to give a 

defendant before accepting a plea: "If you are not a citizen of 

the United States, you are hereby advised that conviction of the 

offense for which you have been charged may have the 

consequences of deportation, exclusion from admission to the 

United States, or denial of naturalization, pursuant to the laws 

of the United States." G. L. c. 278, § 29D. See Commonwealth

v. Soto, 431 Mass. 340, 342 (2000) ("The Legislature has put the 

three required warnings in quotation marks, and each of them is 

required to be given so that a person pleading guilty knows 

exactly what immigration consequences his or her guilty plea may 

have"). Section 29D provided that, should the judge fail 

adequately to give this warning, and should the defendant 

subsequently move to vacate the plea, the judge "shall vacate 

the judgment," provided that the defendant "at any time shows 

that his plea and conviction may have one of the enumerated

consequences." Id. By including the words, "at any time," the 

Legislature made clear that there was no limitation in time to 

bringing a motion to vacate the plea, even though the passage of 

time might mean that the tape recording, transcript, and other 

records of the plea colloquy are no longer available through no 

The statute was subsequently amended in 1996 and 2004, after the 

guilty plea in this case, so we refer only to the original 

language of the statute, but our holding in this case would be 

the same under the current language. See St. 1996, c. 450, 

§ 254; St. 2004, c. 225, § 1.

 
10

fault of the Commonwealth, and that no one may recall what was 

said. See Grannum, 457 Mass. at 132-133 ("Records may be 

unavailable because they have been disposed of pursuant to court 

rules authorizing the destruction of old records, see S.J.C. 

Rule 1:12, as appearing in 382 Mass. 717 [1981], and 

reconstruction may be impossible because of the death, 

retirement, unavailability, or lack of recollection of the 

participants in the plea hearing"). The Legislature made 

equally clear that the presumption of regularity that we apply 

in motions to vacate a guilty plea under Mass. R. Crim. P. 30

(b), as appearing in 435 Mass. 1501 (2001), see Commonwealth

v. Lopez, 426 Mass. 657, 662 (1998), does not apply where a 

defendant moves to vacate a plea under § 29D, because the 

statute provided that "the defendant shall be presumed not to 

have received the required advisement" where there is no record 

that the judge did so. See Grannum, supra at 134 ("the 

presumption of regularity that warnings were given cannot apply 

in the face of the specific language of G. L. c. 278, § 29D").

Where, as here, the Commonwealth failed to meet its burden 

of showing that the defendant was advised that his guilty plea 

may have the consequence of "exclusion from admission to the 

United States," § 29D mandates that the defendant be permitted 

to withdraw his plea, provided the defendant shows that his plea 

"may have" that consequence. "We construe this requirement to 
11

mean that a defendant must demonstrate more than a hypothetical 

risk of such a consequence, but that he actually faces the 

prospect of its occurring." Commonwealth v. Berthold, 441 Mass. 

183, 185 (2004). Where the immigration consequence at issue is 

deportation rather than exclusion from admission, we have said 

that, to satisfy this burden, the defendant must show more than 

that, "if the Federal government were to initiate deportation 

proceedings, the defendant almost inevitably would be 

deported." Grannum, 457 Mass. at 136. See Commonwealth

v. Rzepphiewski, 431 Mass. 48, 50 n.6 (2000). Rather, "[w]here 

the defendant claims that he faces a risk of deportation, we 

construe the statute to require that relief be available only 

where the defendant shows either that the Federal government has 

taken some step toward deporting him or that its express written

policy calls for the initiation of deportation proceedings 

against him." Grannum, supra.

This standard is appropriate where the immigration 

consequence is deportation because, as the Morton memorandum 

makes clear, far more noncitizens are deportable than ICE has 

the resources to deport, so the risk of deportation is 

hypothetical even for a noncitizen who is deportable until there 

is evidence that ICE has decided or will decide to initiate 

deportation proceedings. But this standard is not appropriate

where the immigration consequence is exclusion from admission to 
12

the United States because, where a defendant's conviction would 

render him or her inadmissible under Federal immigration law,

exclusion from admission is far more than a hypothetical risk if 

the defendant were to leave the United States.

Every noncitizen who has left the United States and seeks

admission at a United States port of entry "must present 

whatever documents are required and must establish to the 

satisfaction of the inspecting officer that the alien is not 

subject to removal under the immigration laws . . . and is 

entitled, under all of the applicable provisions of the 

immigration laws . . . , to enter the United States." 8 C.F.R. 

§ 235.1(f) (2013). As stated, under 8 U.S.C. 

§ 1182(a)(2)(A)(i)(I), subject to certain exceptions, "any alien 

convicted of . . . a crime involving moral turpitude . . . is 

inadmissible," and therefore ineligible to be admitted to the 

United States.

To ensure that all noncitizens who are not eligible for 

admission because of prior criminal convictions are identified

at the time of inspection, United States Customs and Border 

Protection (CBP) obtains identifying information for all 

individuals arriving by sea or air from outside the United 

States prior to arrival, see 8 U.S.C. § 1221(a) (2012), and 

screens that information against a variety of law enforcement 

databases, including the National Crime Information Center. See 
13

8 U.S.C. § 1226(d) (2012) (United States Attorney General shall 

"maintain a current record of aliens who have been convicted of 

an aggravated felony," which shall be made available to 

inspectors at ports of entry); United States Department of 

Homeland Security, Privacy Impact Assessment for the TECS 

System: CBP Primary and Secondary Processing (Dec. 22, 2010). 

At the time of inspection, if the examining officer determines 

that the noncitizen seeking admission "is not clearly and beyond 

a doubt entitled to be admitted, [he or she] shall be detained 

for [removal proceedings]." 8 U.S.C. § 1225(b)(2)(A) (2012).6

See also 8 U.S.C. § 1226(c)(1)(A) (2012) (individual deemed 

inadmissible under 8 U.S.C. § 1182[a][2] "shall" be detained); 

8 C.F.R. § 235.3(b)(5)(ii) (2013) (where noncitizen with lawful 

permanent resident status seeks admission but "appears to be 

inadmissible, the immigration officer may initiate removal 

proceedings against [him or her]").

An immigration judge will preside over the removal 

proceedings, see 8 U.S.C. § 1229a(a)(1) (2012), at which the 

noncitizen has the burden of establishing that he or she "is 

clearly and beyond doubt entitled to be admitted and is not 

inadmissible under [8 U.S.C. § 1182]". 8 U.S.C. 

6 A noncitizen returning to the United States who is 

lawfully admitted for permanent residence is regarded as seeking 

admission if he or she has committed an offense identified in 8 

U.S.C. § 1182(a)(2) (2012), which includes crimes involving 

moral turpitude. See 8 U.S.C. § 1101(a)(13)(C)(v) (2012).

 
14

§ 1229a(c)(2)(A) (2012). Under these circumstances, it is

virtually inevitable that an individual who is ineligible for 

admission based on a criminal conviction under 8 U.S.C. 

§ 1182(a)(2) will be deemed inadmissible to the United States 

upon arrival, and ordered removed by an immigration judge 

pursuant to 8 U.S.C. § 1229a.

The Commonwealth argues, as the Appeals Court held, that a 

defendant can only satisfy his or her burden of demonstrating 

"more than a hypothetical risk" of exclusion by showing that 

there is a pending proceeding to exclude him from admission to 

the United States. In practice, this would mean that the 

defendant must leave the country and be denied readmission, as 

there can be no pending proceeding to exclude an applicant from 

admission to the United States unless the applicant has filed 

the required documents with Federal authorities upon attempting

to enter the country. See 8 U.S.C. § 1181(a) (2012) ("no 

immigrant shall be admitted into the United States unless at the 

time of application for admission" he or she presents valid 

documents [emphasis added]). We see two problems with such an 

interpretation of G. L. c. 278, § 29D.

First, it would be contrary to the language of § 29D, which 

at the time of the defendant's plea provided that a defendant's 

conviction shall be vacated upon a showing by the defendant 

"that his plea and conviction may have one of the enumerated 
15

consequences" (emphasis added). We interpreted this original 

version of the statute to mean that a defendant could attack his 

or her conviction only before the defendant suffered the 

immigration consequence, and therefore held that the remedy was 

not available to a defendant who had already been deported.

See Commonwealth v. Pryce, 429 Mass. 556, 559 (1999).7 Under our 

interpretation of § 29D in Pryce, a defendant could not attack 

his or her conviction if he or she had already been excluded 

from admission to the United States, but under the 

Commonwealth's interpretation, a defendant could not attack his 

or her conviction until he or she had been excluded from 

admission to the United States.8 The Commonwealth's 

interpretation would transform the words "may have" into "have 

had," which this court declined to do in Pryce, supra ("The 

concept of attacking the conviction after deportation has taken 

7 In 2004, the Legislature amended G. L. c. 278, § 29D, to 

make clear that the remedy of vacatur of the conviction is 

available to defendant who "may have or has had one of the 

enumerated consequences, even if the defendant has already been 

deported from the United States." St. 2004, c. 225, § 1.

8 In Commonwealth v. Soto, 431 Mass. 340, 341-342 (2000), we 

ordered that a defendant's guilty plea be vacated because the 

judge had not advised the defendant that his conviction could 

result in his exclusion from admission to the United States 

where the Immigration and Naturalization Service "initiated 

proceedings to remove the defendant from the United States -- he 

was in Puerto Rico at the time -- because of his prior narcotics 

conviction." We do not opine whether this holding would have 

been different under Commonwealth v. Pryce, 429 Mass. 556, 559 

(1999), had he not been in a territory of the United States when 

he was denied admission.

 
16

place is missing from the statute. We perceive this to be more 

than a semantic lapse").

Second, such an interpretation would be contrary to the 

legislative spirit of § 29D, because it would effectively deny a 

defendant a remedy where he or she was convicted without being 

warned of the immigration consequence of exclusion from 

admission to the United States. Few, if any, defendants whose 

conviction would render them inadmissible upon reentry would 

dare to leave the country, so they could show no pending 

proceeding, and therefore could not show that their conviction 

"may have" the consequence of exclusion from admission. For 

those foolish or brave enough to leave the country in these 

circumstances, it would be extremely difficult for them to 

challenge their prior conviction after being found inadmissible.

Where a noncitizen is deemed inadmissible because of conviction 

of a crime of moral turpitude and for that reason placed in 

removal proceedings, he or she is subject to mandatory 

detention. See 8 U.S.C. § 1226(c)(1)(a). Because immigration 

proceedings against those who are detained move quickly, the

defendant is likely to be removed before a postconviction motion 

can be adjudicated.9

 The Commonwealth points to no statute or 

9 The average length of detention for those removed is 

twenty-seven days. See Transactional Records Access 

Clearinghouse, Legal Noncitizens Receive Longest ICE Detention

 
17

precedent that requires the suspension of Federal removal 

proceedings while a postconviction motion is pending. Thus, 

requiring a noncitizen defendant to wait until he or she is 

found inadmissible before filing a motion under § 29D would 

greatly diminish the practical availability of the remedy 

provided by § 29D for those at risk of exclusion from admission 

to the United States.

We hold that, where a defendant has not received the 

required exclusion from admission warning under § 29D, he or she 

satisfies the burden of showing that his or her conviction "may 

have" the consequence of exclusion from admission to the United 

States by showing (1) that he has a bona fide desire to leave 

the country and reenter, and (2) that, if the defendant were to 

do so, there would be a substantial risk that he or she would be 

excluded from admission under Federal immigration law because of 

his or her conviction. Here, where the motion judge was not the 

plea judge and did not conduct an evidentiary hearing, we are in 

the same position as the motion judge to make findings. 

See Commonwealth v. Sullivan, 469 Mass. 340, 351 (2014). We

conclude from the record that the defendant has satisfied both 

requirements for relief.

(June 3, 2013), http://trac.syr.edu/immigration/reports/321/ 

[https://perma.cc/S33G-CPF3].

 
18

First, the defendant has met his burden of showing a bona 

fide desire to travel outside the United States where he told 

his immigration attorney that he wished to "travel outside of 

the United States and to his home country, the Dominican 

Republic, to visit with friends and family who he has not seen 

in many years." We deem this a modest burden, because we 

recognize that it is natural for an immigrant who has left 

family and friends behind to wish to see them again. We also 

infer the sincerity of his desire to see family and friends 

because he spoke of it to his immigration attorney before the

motion was filed, and therefore could not have known that the 

judge would later find that he had been warned of all the 

immigration risks except exclusion from admission to the United 

States, which is the risk relevant to his desire to leave the 

United States.10

Second, there is a substantial risk that, if the defendant 

were to leave the country, he would be excluded from admission 

to the United States under Federal immigration law and placed in 

removal proceedings as a result of his 1989 conviction. The 

Federal statute governing the inadmissibility of noncitizens, 8 

10 Although the affidavit offered by the defendant's 

immigration attorney here provided support for the defendant's 

showing of a bona fide desire to travel outside the United 

States, we do not suggest that an affidavit from an immigration 

attorney is necessary to enable a defendant to make the required 

showing.

 
19

U.S.C. § 1182(a)(2), does not identify the crimes that qualify 

as "involving moral turpitude." To determine whether a crime 

involves moral turpitude, courts look to the "inherent nature of 

the crime of conviction, as defined in the criminal 

statute." Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014), 

quoting Idy v. Holder, 674 F.3d 111, 118 (1st Cir. 2012). We 

are not aware of any case that has specifically declared whether 

larceny of a motor vehicle, in violation of G. L. c. 266, § 28, 

is a crime involving moral turpitude, but it is likely that the 

immigration authorities would conclude that it is.

Under Massachusetts law, to convict a defendant of this 

crime, the Commonwealth must prove that the defendant took a 

motor vehicle owned by another with "an intent permanently to 

deprive the rightful owner of the possession of the motor 

vehicle." Commonwealth v. Giannino, 371 Mass. 700, 703 (1977). 

See Commonwealth v. Moore, 36 Mass. App. Ct. 455, 457 (1994).

Because the crime of larceny of a motor vehicle has a required 

element that the defendant intends permanently to deprive the 

rightful owner of possession, the immigration authorities are 

likely to find that the crime involves moral turpitude. 

See Almanza-Arenas v. Holder, 771 F.3d 1184, 1190 (9th Cir. 

2014) (permanent taking of motor vehicle, but not temporary 

taking, is crime involving moral turpitude); Mejia, supra

(same); Hashish v. Gonzalez, 442 F.3d 572, 576 (7th Cir.), cert. 
20

denied, 549 U.S. 995 (2006) ("'theft' is a crime of moral 

turpitude"). Once found to have committed a crime involving 

moral turpitude, the defendant would be ineligible for admission 

under 8 U.S.C. § 1182(a)(2)(A)(i)(I).11

In addition, the defendant's conviction would be deemed an 

aggravated felony because it is a "theft offense" for which he 

was imprisoned for more than one year. See 8 U.S.C. 

§ 1101(a)(43)(G). His conviction of an aggravated felony 

renders him ineligible for certain forms of relief in removal 

proceedings in immigration court. See, e.g., 8 U.S.C. 

§ 1229b(a) (2012) (cancellation of removal not available if 

noncitizen has been convicted of aggravated felony).

Conclusion. Because the defendant has met his burden of 

showing that his conviction "may have" the consequence of 

exclusion from admission to the United States, and he was not 

warned of this consequence during his plea colloquy, we conclude 

that his conviction must be vacated in accordance with § 29D. 

We therefore reverse the order of the judge denying the 

defendant's motion to vacate judgment and remand the case for a 

new trial.

So ordered.

11 The exceptions to the general rule that "any alien 

convicted of . . . a crime involving moral turpitude" is 

inadmissible do not apply here based on the information 

available in the record. See 8 U.S.C. § 1182(a)(2)(A)(i)(I); 

8 U.S.C. § 1182(a)(2)(A)(ii).

 
21
CORDY, J. (concurring). I agree that the wording of G. L. 

c. 278, § 29D, dictates the outcome reached by the court. I 

concur only to point out the anomalous result created by 

phrasing of the statute. Here, more than twenty-five years 

after his plea of guilty, and long after the records of 

precisely what occurred at the plea hearing had been duly 

destroyed pursuant to court rule, the defendant is able to undo 

his conviction because he wishes to make a trip to visit old 

friends and family in his native country, and might well be 

denied reentry to the United States, in light of the conviction 

-- all because, not surprisingly, the Commonwealth cannot 

clearly prove that when he pleaded guilty in 1989 he was advised 

that such a denial of reentry might someday occur as a result.

If, on the other hand, deportation proceedings had been 

commenced against the defendant at some point over the last 

twenty-five years based on the same conviction, such a wiping 

clean of the criminal record would not have been available to 

him, given that the Commonwealth was able to obtain an affidavit 

regarding the distant memory of a still living retired judge 

that he was certain he would have advised the defendant in 1989 

that deportation (as well as the denial of naturalization) might 

be a consequence of the conviction. Of course, once the 

conviction is vacated due to the travel reentry concern, neither 
2

a deportation nor a denial of naturalization could occur as a 

result of it.

The present case involved only the crime of larceny of a 

motor vehicle, but the statute applies to all crimes against 

persons and property to which a person might have pleaded guilty 

any time after 1978, when the statute was enacted. As is 

evident in this case, there is no time limit as to when a 

challenge can be brought -- and a plea of guilty vacated -- even 

though the plea may have been voluntary and fully supported by 

the facts. Further, contrary to the ordinary presumption of 

regularity in court proceedings that is applied in all other 

motions to vacate guilty pleas where, because of the passage of 

time, the record of the proceeding is not fully available, the 

statute creates the opposite presumption when immigration 

warnings are at issue.

If this is indeed what the Legislature intends, so be it.