Today’s FYI concerns the effect of a withdrawn Admission to Sufficient Facts. You may already know that a Massachusetts Continued Without a Finding (“CWOF”) disposition constitutes a conviction for immigration purposes. Thus, if you have a client who comes to you with a charge with a CWOF disposition, you should consider that a conviction in evaluating the applicant’s eligibility for citizenship.
While that is true, criminal defense attorneys must advise their clients of the possible immigration consequences of an admission that would form the basis of a CWOF. If an attorney does not so advise her non-citizen client, the client could move the court for an order allowing the withdrawal of the admission on the basis of ineffective assistance of counsel. If the judge grants that motion, then the withdrawn CWOF will not constitute a conviction for immigration purposes.
To sum up, even if a disposition was at one point a CWOF, if your client has an order saying that the client’s admissions forming the basis of the CWOF are withdrawn due to ineffective assistance of counsel, and the case is ultimately dismissed for some other reason, then the immigration consequences of the disposition should be nullified.