(concurring, with whom Spina and Cordy, JJ., join). I agree with the court that a defendant must demonstrate more than a hypothetical risk that the challenged conviction will result in one of the enumerated immigration consequences in order to obtain relief under G. L. c. 278, § 29D (the immigration warnings statute). I agree also that the defendant has not met this burden here. I write separately because I do not agree that a showing that Federal immigration authorities have adopted an express written policy calling for the initiation of deportation proceedings based on the challenged offense is sufficient to demonstrate more than a hypothetical risk of deportation. The court’s test expands the class of people eligible for relief under G. L. c. 278, § 29D, beyond what our cases have allowed.1
By enacting the immigration warnings statute, the Legislature did not intend to provide relief to every person who did not receive the warnings at the time he or she entered a guilty plea or plea of nolo contendere, or admitted to sufficient facts. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004). In order for relief to be available, the statute requires also that the defendant show that “his plea or conviction may have or has had one of *138the enumerated consequences.” G. L. c. 278, § 29D. In our past cases we have construed this requirement
“to mean that the defendant must demonstrate more than a hypothetical risk of such a consequence, but that he actually faces the prospect of its occurring. To conclude otherwise would, as a practical matter, read the requirement out of the statute. Had the Legislature intended such a result, it could have easily accomplished it by simply providing that an alien, not advised of each of the three enumerated possible immigration consequences, has a right to withdraw his plea at any time.” (Emphasis supplied.)
Commonwealth v. Berthold, supra.
The court concludes that a showing that an express written policy of Federal immigration authorities calls for the initiation of deportation proceedings based on the challenged offense is sufficient to demonstrate more than a hypothetical risk that the defendant will in fact suffer deportation. See ante at 136. However, until Federal immigration authorities take steps toward deporting an alien, the risk of deportation, in my view, remains hypothetical. Federal authorities possess “long-established discretion to decide whether and when to prosecute or adjudicate removal proceedings or to execute removal orders.” See Cardoso v. Reno, 216 F.3d 512,517 (5th Cir. 2000), quoting Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir. 1999).
Additionally, “[t]he Attorney General may, in his discretion, waive” in individual cases several of the statutory provisions that render an alien ineligible for admission to the United States. See 8 U.S.C. § 1182(h) (2006). Furthermore, the Attorney General may cancel removal for aliens who are otherwise inadmissible or deportable if the alien meets certain statutory criteria. See 8 U.S.C. § 1229b (2006). The decision to exercise this authority with respect to an alien who meets the statutory criteria is discretionary. See Nadal-Ginard v. Holder, 558 F.3d 61, 64 n.4 (1st Cir. 2009); Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906 (8th Cir. 2005).
In addition, today’s holding will be difficult to administer. Although the court claims that there is little possibility of uncertainty because of the requirement that a Federal immigra*139tion policy be express and written in order to form a basis for relief, see ante at 136 n.14, the court neither defines nor provides examples of the types of policies that would be sufficient. For example, the court recognizes that statutory eligibility for deportation is not sufficient on its own to form a basis for relief. See ante at 135. However, the Federal law defining when an alien is subject to deportation represents a written Federal policy. The court provides no guidance on how to differentiate written policies that are sufficient to form a basis for relief under the statute from those that are not. This will result in much future litigation to decide whether an express written policy is of the type that qualifies a defendant for such relief.
Requiring a defendant to establish that the Federal government has taken affirmative steps to bring about deportation provides a “bright line” rule that is consistent with our case law requiring that a defendant face more than a hypothetical risk of deportation. See Commonwealth v. Berthold, supra. I believe that such a showing is necessary before permitting relief under the immigration warnings statute.
I agree with the portion of the court’s opinion concluding that the “presumption of regularity” announced in Commonwealth v. Lopez, 426 Mass. 657 (1998), does not apply to G. L. c. 278, § 29D. See ante at 132-134.