Opinion
No. 12–P–1159.
2013-04-5
COMMONWEALTH v. Mateo S. LOPEZ.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to withdraw his 1993 admission to sufficient facts for operating under the influence (OUI). Following the 1993 proceedings, the defendant was twice more convicted of OUI. Fearing the risk of deportation after the third OUI conviction, he moved to withdraw the 1993 admission on the ground that the judge failed to provide him with the statutorily required warnings of the immigration consequences of such an admission. See G.L. c. 278, § 29D. We affirm.
The Commonwealth has the burden of showing that the defendant was advised of immigration consequences under G.L. c. 278, § 29D. See Commonwealth v. Mahadeo, 397 Mass. 314, 318 (1986). Because the only record in the instant case is the docket sheet with an unchecked box next to the immigration warning, the Commonwealth has not met its burden. We must assume that the defendant was not given his statutorily required warning. That alone, however, does not entitle the defendant to relief. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004) (the statute does not permit withdrawal of a plea “merely on a showing that [the defendant] did not receive an adequate immigration warning”). “The remedy clause of G.L. c. 278, § 29D, is triggered only when a defendant can additionally demonstrate that he ‘may’ become subject to one of the immigration consequences enumerated in the statute.” Ibid. The defendant argues that the plain language of the statute does not require him to show that he is subject to the immigration consequences recited in G.L. c. 278, § 29D.
While we agree, the defendant ignores the relevant case law. “We construe this requirement to 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, supra. The defendant has not met this burden.
The three immigration consequences recited in the statute are deportation, exclusion from admission to the United States, and denial of naturalization.
“Mere eligibility for deportation is not a sufficient basis for relief under G.L. c. 278, § 29D. Nor is it sufficient to show that, if the Federal government were to initiate deportation proceedings, the defendant almost inevitably would be deported.” Commonwealth v. Grannum, 457 Mass. 128, 136 (2010). The defendant's affidavit states that he is “now facing the immediate and actual risk of deportation.” But the defendant has not supported this assertion with any evidence that removal proceedings have begun or that United States Immigration and Customs Enforcement has notified him of imminent removal consequences. See Commonwealth v. Casimir, 68 Mass.App.Ct. 257, 259 (2007). The potential deportation consequences faced by the defendant are, at this point, nothing more than a “hypothetical risk.” See Commonwealth v. Berthold, 441 Mass. at 185.
The defendant fares no better under the other removal consequences. He claims “a substantial risk of exclusion” from re-entry if he travels outside the United States. His statement alone expresses that this is a mere possibility because he has not claimed any immediate plans to leave the country. Lastly, the defendant fears that any applications for naturalization would be denied because of his OUI record. He has not claimed that he has even applied for naturalization, so this is, again, nothing more than a mere hypothetical risk. See Commonwealth v. Casimir, supra . The judge correctly denied the defendant's motion.
Because the defendant has not shown that he actually faces the immigration consequences recited in G.L. c. 278, § 29D, we need not address the second issue raised, see Commonwealth v. Barreiro, 67 Mass.App.Ct. 25, 26 (2006), that the potential immigration consequences would in fact be the result of the 1993 admission to sufficient facts.
Order denying motion to withdraw guilty plea affirmed.