Immigration Law Newsletter

November 2012
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Immigrants and the DPH Drug Lab Scandal

The DPH drug lab scandal has impacted many of our immigrant clients. If you believe you may have a client who could obtain immigration relief as a result of the issues at the DPH drug lab you should contact your client and see if they would like to pursue relief based on the problems at the lab.

If after meeting with your client you make the decision to pursue relief, the first thing you should investigate is whether or not the drugs were analyzed at the DPH Hinton Lab. If so, you most likely have an argument in the case. As of now, the only person who has been fired and is currently under investigation is Annie Dookhan, however more and more every day is being discovered regarding her malfeasance at the lab and how it could have affected all of the other drug testing that was being done there. The entire DPH Hinton lab has been closed, which is indicative of the depth of the issues there.

If the client is in immigration custody, you should check for an immigration detainer before arguing for release on bail because once they are in ICE custody it is more difficult (and sometimes completely impossible) to get them to state court to resolve the criminal case or argue a motion for new trial. Keep in mind that many judges are willing to waive the client's appearance if they are in immigration custody because the judges are aware of the difficulty of having clients brought in from immigration custody.

If your client is in removal proceedings, check to see if a Dookhan/Hinton lab drug case is the basis for removal or if it is a bar to relief from removal. If so, ask the immigration judge to continue the removal proceedings while the client pursues post-conviction relief. It is presently the posture of the immigration court that you need to show a Dookhan certificate to obtain a continuance.

If a client has a final order of removal and the order is based solely on Dookhan/Hinton conviction or if the conviction barred relief from removal, file a motion to reopen the immigration proceedings and request a stay of removal ASAP.  You may also want to contact the client's consulate and request travel documents not be issued until the motion for new trial or motion to vacate has been adjudicated.

It is important in all of these cases to be sure that on your filings you indicate that they involve immigration consequences for your client. Indicate to the clerk and to the court in the title of your motion and on your cover letter that it is a "DPH Drug Lab Case" and that your client is an immigrant with immigration consequences as a result of the conviction.

Special sessions are being heard in several courthouses throughout Massachusetts for these cases.  In some counties, attorneys have the option of either filing their Dookhan motions in a special session or sending them directly to the sentencing judge. In other counties, all Dookhan motions are being funneled into a special session, regardless of where the attorney tries to file them. We are learning more as each day passes in how these cases are being handled.

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