BOSTON (LN) — A lawful permanent resident may withdraw decade-old drug admissions after Massachusetts' Supreme Judicial Court held that a rule-based immigration warning cannot substitute for the specific statutory warning required under state law, and that a dismissed-without-prejudice deportation proceeding is sufficient to show an actual prospect of removal.
Chhieng, a lawful permanent resident, admitted to sufficient facts on two counts — possession with intent to distribute and distribution of a class B substance — in Peabody District Court in 2015. The proceeding was continued without a finding for 18 months, and the charges were ultimately dismissed.
Five months after the plea hearing, however, U.S. Immigration and Customs Enforcement initiated deportation proceedings against Chhieng based on those admissions. The immigration case was later dismissed without prejudice after Chhieng's counsel identified a procedural defect in his notice to appear — the document lacked a hearing date.
Chhieng then moved to vacate his admissions under G. L. c. 278, § 29D, which requires a judge, before accepting any guilty plea, nolo contendere plea, or admission to sufficient facts, to advise the defendant: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."
At his 2015 colloquy, Chhieng received a warning that referenced only conviction — not an admission to sufficient facts — telling him that "a conviction of these offenses may have the consequences of deportation, exclusion from admission to the United States or denial of naturalization." The court also gave him a separate warning under former Mass. R. Crim. P. 12, known as the rule (b) warning, which addressed offenses that, under federal law, presumptively mandate removal.
The Commonwealth conceded the § 29D warning was defective but argued the rule (b) warning cured the error. Chief Justice Budd, writing for a unanimous seven-justice court, rejected that argument as foreclosed by the court's 2019 decision in Commonwealth v. Petit-Homme. That decision held that the rule (b) warning was intended to be given in addition to the statutory § 29D warning — not instead of it. The court noted that rule (b) has since been eliminated because, when paired with the general § 29D advisory, it risked creating a misimpression among defendants and a significant risk of confusion.
On the second required element — whether Chhieng actually faces the prospect of deportation — the motion judge had denied relief, reasoning that the dismissed immigration proceeding left Chhieng without a live removal threat. The Supreme Judicial Court disagreed, holding that a dismissal without prejudice still means the federal government has taken some step toward deporting Chhieng and could reinitiate proceedings at any time. The court cited Commonwealth v. Grannum for the proposition that a defendant need not wait until a deportation proceeding has actually commenced to satisfy that standard.
The court declined to reach Chhieng's separate argument that Executive Order No. 14159 — President Trump's January 2025 order directing enforcement of immigration laws against all inadmissible and removable aliens — independently constituted an express written policy triggering § 29D relief, finding the initiated-proceedings ground sufficient on its own.
The Supreme Judicial Court reversed the denial and remanded to District Court for further proceedings consistent with its opinion, clearing the way for Chhieng to seek withdrawal of his admissions and entry of a not-guilty plea — nearly a decade after the original proceeding.