Immigrant’s conviction on drug possession overturned

Wasn’t informed he’d be deported

By John M. Guilfoil
Globe Staff / March 30, 2011

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A Turkish immigrant’s conviction on a drug possession charge was thrown out yesterday after a judge ruled his court-appointed attorney failed to properly inform the defendant that his plea bargain would result in his deportation.

Rasid Frihat, 41, of Norwell, had been a legal permanent resident for eight years, but not an American citizen, when he was arrested on a charge of drug possession in August 2008. He admitted to sufficient facts for a guilty conviction in Hingham District Court in September 2008 for possession of a single pill of the anxiety drug Klonopin, his lawyer said.

The case was continued without a finding and was dismissed six months later.

Unbeknownst to Frihat or his first attorney, the drug conviction meant Frihat would be deported back to Turkey. He completed his six-month probationary term, and the case was dismissed, according to court documents. But last summer, Frihat was detained and has been in US Immigration and Customs Enforcement custody since.

“Many defendants are told ‘if you just admit to having the pill, they’re going to continue the case for six months, and it will be dismissed,’ ’’ said Nicholas J. Di Mauro, a Boston lawyer who took on Frihat’s case last fall.

Frihat was scheduled to have a deportation and removal hearing in December, but a US Supreme Court ruling last year in the case of Padilla v. Kentucky held that defense lawyers must advise their noncitizen clients that a guilty plea or a plea bargain could result in deportation. The ruling said that this notice is part of a defendant’s Sixth Amendment right to effective counsel, Di Mauro said.

Frihat was never told by his lawyer he could be deported, and Di Mauro was able to get the conviction tossed.

“Since the probability of automatic deportation as an immigration consequence was not discussed with the defendant by his former attorney prior to his admission, the defendant’s motion to vacate his plea is allowed,’’ wrote Hingham District Court Judge Toby S. Mooney in her decision yesterday. Frihat will remain in Immigration and Customs Enforcement custody until the outcome of his case is settled. He is to appear in the Hingham court for a pretrial conference in late April, Di Mauro said.

Frihat’s immigration attorney, Javier Pico of Boston, said he often sees cases in which immigrants take a plea simply to avoid jail time without knowing they could be deported. “For immigration purposes, a plea bargain is the exact same thing as if the jury finds you guilty,’’ he said.

Jessica Vaughan of Franklin, director of policy studies for the Washington-based Center for Immigration Studies, which advocates for strict immigration law enforcement, decried the Padilla ruling, saying immigrants “should be sentenced based on state law, not based on what’s going to happen to their immigration status. . . . It’s strange to see the outsized role that someone’s immigration status is playing in our criminal justice system, and we’re going to see a lot more of this.’’

Vaughan also said that the effects of the Padilla ruling could clog the immigration court system.

“I’m sure that’s not the kind of thing the Supreme Court considers when it makes its rulings, but that’s going to be the practical effect,’’ she said.

But Pico, noting Frihat would have been deported otherwise, defended the Padilla decision. “Immigration law is very complex, and most attorneys have no idea what the consequences are,’’ he said. “Padilla is great because it requires that before you accept a plea, you have to be informed by your counsel as to exactly what is going to happen.’’

Di Mauro said Frihat is married to a US citizen, has two children, and owns his home in Norwell. He said the former supermarket worker was injured on the job and was legally prescribed Klonopin after the injury, but he kept taking it after he no longer needed it.

“He is a family man,’’ Di Mauro said. “He got involved with these prescriptions because he was severely injured at work, and then he basically got hooked on it.’’

John M. Guilfoil can be reached at