(concurring in part and dissenting in part). I agree with the court that, considered in light of firmly rooted constitutional protections for noncitizen defendants, the defendant has shown that defense counsel’s deficiencies deprived the defendant “of the opportunity to make an intelligent decision, based on greater information, about whether to proceed to trial to request that counsel engage in plea negotiations.” Ante at 127. In these circumstances, prejudice is shown under an established framework that was set forth by the United States Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010) (Padilla), citing Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (Flores-Ortega). A noncitizen defendant who is given inaccurate advice about the immigration consequences of pleading guilty must “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, supra, citing Flores-Ortega, supra. *134This framework also must guide our analysis when counsel’s deficiencies consist of failing to “have informed the defendant that the prosecution was interested in discussing a plea resolution” and further failing to “discuss that possibility with the defendant prior to trial.” Ante at 127.
The court departs from this framework. By requiring that a noncitizen defendant in these circumstances present proof of a specific plea that the prosecutor would have offered, and show that the result of a plea would have been more favorable than the outcome of the trial, the court has imposed a standard more burdensome than that of the United States Supreme Court and thereby has erected a barrier to vindication of a noncitizen defendant’s constitutional right to effective assistance of counsel that no defendant in these circumstances reasonably will be able to overcome.
The defendant’s submissions establish both that his counsel was ineffective and that the defendant was prejudiced by counsel’s deficiencies; I would therefore have allowed the defendant’s motion for a new trial, and respectfully dissent.1
1. Prejudice under Padilla and Flores-Ortega. Under the second prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), in order to prevail on a claim of ineffective assistance, a defendant must show that he was prejudiced by counsel’s serious deficiency. In Padilla, the United States Supreme Court discussed the *135prejudice prong of a claim that counsel was deficient in advising his noncitizen client about immigration consequence; the Court cited Flores-Ortega, supra at 486, in support of its holding that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, supra at 1485.
The Court’s reliance on Flores-Ortega, and to the specific citation in that opinion, is telling. The defendant in Flores-Ortega alleged that his counsel failed to file an appeal without his consent; the Court held that the applicable prejudice requirement may be satisfied if a defendant shows nonfrivolous grounds appeal, but a defendant need not “ ‘specify the points he would raise were his right to appeal reinstated’. . . where there are other substantial reasons to believe that he would have appealed.” Flores-Ortega, supra at 485-486, quoting Rodriguez v. United States, 395 U.S. 327, 330 (1969). What is required to show prejudice is that “the defendant demonstrate that, but for counsel’s deficient conduct, he would have appealed.” Flores-Ortega, supra at 486.
A similar framework is described in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011) (Clarke). In Clarke, we concluded that a defendant who received deficient assistance of counsel at the plea bargaining stage may show prejudice by establishing “the presence of ‘special circumstances’ that support the conclusion that [the defendant] placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Id., citing Hill v. Lockhart, 474 U.S. 52, 60 (1985). See State v. Sandoval, 171 Wash. 2d 163, 175, 176 (2011). That prejudice requirement “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, supra at 59.2 Where, as here, counsel’s deficient representation included his failure to respond to the prosecutor’s *136plea overtures, knowing that the defendant faced possible deportation, prejudice is shown if the defendant can demonstrate that, but for counsel’s deficient conduct, he would have sought a plea that minimized the risk of the potential consequence of deportation for life. The defendant need not prove that he necessarily would have obtained a better result by plea bargaining than by going to trial.
In its analysis of what it views to be the applicable prejudice standard, the court does not cite Padilla and its reliance on Flores-Ortega but, instead, concludes that, under Missouri v. Frye, 132 S. Ct. 1399 (2012) (Frye), and Lafler v. Cooper, 132 S. Ct. 1376 (2012) (Lafler), “the defendant must show a reasonable probability that the result of a plea would have been more favorable than the outcome of the trial.... In particular, the defendant must demonstrate a reasonable probability that the prosecution would have made an offer, that the defendant would have accepted it, and that the court would have approved it.” Ante at 129.* *3
Frye and Lafler do not account for Padilla’s discussion of the severe consequence of deportation, see Padilla, supra at 1480, 1485, and the fact that a noncitizen defendant’s risk assessment includes consideration of the probability that, depending on the criminal charges filed against him, he faces presumptive permanent removal. In this case, as in Padilla, supra, the defendant’s primary concern was avoiding that severe consequence, which depended not only on the length of the sentence, but also on the nature of the charges. See Roberts, Proving Prejudice, Post-Padilla, 54 Howard L.J. 693, 697 (2011) (“disclosure about a severe collateral consequence can radically alter a defendant’s risk analysis, and might lead some defendants to take a risk at trial where acquittal or conviction on a lesser charge is the only way to potentially avoid that consequence”). Moreover, *137unlike in Frye and Lafler, as a consequence of counsel’s deficient performance, no specific plea offer was made here, and consequently none was ever discussed with the noncitizen defendant.4
Thus, Frye and Lafler do not prescribe the appropriate prejudice standard. Rather, as set forth in Padilla, supra at 1485; Flores-Ortega, supra; and Hill v. Lockhart, supra, a noncitizen defendant who faces adverse immigration consequences may establish prejudice by showing that it would have been rational under the circumstances to seek a plea, and that he would have accepted a plea imposing substantial penal consequences if that would have avoided the immigration consequence of deportation with no possibility of return. This showing focuses on a defendant’s special circumstances, in particular his immigration status and the consequence of removal, and asks a reviewing court to consider what a rational defendant faced with permanent removal, as compared to a lengthy incarceration should he be found guilty, would have done had he been counseled properly.
Because the focus is not on what a prosecutor and trial judge might have done when considering solely those factors related to the charged crime and appropriate sentencing, “no further showing from the defendant of the merits of his underlying claims” is required. Flores-Ortega, supra at 484. Instead, a defendant “must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult him” about whether to engage in plea negotiations, he would have sought a resolution of the charges without trial. Id. Under this framework, applicable here, prejudice may be established by evidence of a defendant’s statements to his counsel that he wanted to participate in plea bargaining, or the presence of “other substantial reasons to believe” that a defendant would have wanted to engage in plea discussions.5 Id. at 485-486.
2. The defendant has established a reasonable probability of *138prejudice. Even under the court’s prejudice rubric, the defendant has shown a “reasonable probability that the result of a plea would have been more favorable than the outcome of the trial,” ante at 129, when “more favorable” takes into account the consequence of permanent removal from the United States. “A reasonable probability is a probability sufficient to undermine confidence in the outcome”; it does not mean “more likely than not.” Strickland v. Washington, 466 U.S. 668, 693, 694 (1984).
That there is a reasonable probability that the prosecutor would have engaged in plea discussions is established, first, by the prosecutor’s affidavit, in which he states that he twice sought to engage in plea discussions with defense counsel, at a time when counsel was aware that the defendant faced immigration consequences,* ****6 and, second, by the widely recognized premise noted by the United States Supreme Court that most criminal cases today are resolved by plea bargaining rather than trials. See Lafler, supra at 1388.
Moreover, prosecutors are advised to consider all consequences of a defendant’s conviction when deciding whether to enter into a plea agreement. See U.S. Dep’t of Justice, United States Attorneys’ Manual § 9-27.420(A)(8) (1997); National Dist. Attorneys Ass’n, National Prosecution Standards § 68.1(g), at 191-192 (2d ed. 1991).7 Under the American Bar Association Standards for Criminal Justice, Prosecution Function and Defense *139Function, Standard § 3-4.1 (3d ed. 1993), “[t]he prosecutor should have and make known a general policy or willingness to consult with defense counsel concerning disposition of charges by plea.” Indeed, this court and the United States Supreme Court have recognized that “the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties” if all sides are aware of the immigration consequences. Clarke, supra at 47 n.18, quoting Padilla, supra at 1486.
Based on the foregoing, had defense counsel participated in plea negotiations, there is a reasonable probability that the prosecutor would have been amenable to a plea to lesser offenses, in lieu of assault and battery causing serious bodily injury,* ******8 in order to avoid the consequences to the defendant of deportation without the possibility of return. See, e.g., K. Kanstroom & L.M. Glaser, Immigration, in Crime and Consequence: The Collateral Effects of Criminal Conduct § 8.7.2, at 8-27 (Mass. Cont. Legal Educ. 2d ed. 2009) (recommending plea to disorderly conduct as alternative to assault and battery).9 Even if the defendant were to have pleaded guilty to assault and battery causing serious bodily injury, a sentencing recommendation of less than one year would have avoided a conviction for what, *140under applicable immigration law, constitutes an aggravated felony,10 and would have ameliorated the consequence of deportation to the defendant
The record demonstrates that the defendant had a viable defense of defense of another, and that conviction of the offenses charged was far from certain. See, e.g., Padilla, supra at 1486 (“a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction”). A plea agreement to a lesser offense would have saved the Commonwealth the time and expense of a trial. The prosecutor twice indicated his willingness to bargain, the second time after having learned of the defendant’s immigration status. There was thus a reasonable probability that the prosecutor would have accepted such a plea.11
Finally, I respectfully disagree with the court’s assertion that “[ejvidence that there was no plea negotiation . . . does not establish that there was any real opportunity to avoid the immigration consequences of a conviction, particularly for an undocumented person. The reality of the defendant’s status as an undocumented person living in the United States was that he was deportable per se on account of his unlawful status. The defendant was, in fact removed from this country following his criminal proceedings.” (Footnote omitted.) Ante at 130-131. This assertion does not reflect current immigration law and policies, which are reflected in decisional law, including that of the United States Supreme Court. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). See also Padilla, supra; Clarke, supra; Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 397398 (2012). Moreover, the defendant’s immigration status as an undocumented alien does not mean that he suffered no prejudice *141by being subject to removal for having committed an aggravated felony.12
The defendant’s status as an undocumented alien rendered him “inadmissible,” 8 U.S.C. § 1182(a)(6)(A)® (2006), and consequently subject to removal, 8 U.S.C. § 1227(a)(1)(A) (2006), but the fact that a defendant has the status of an inadmissible alien has consequences quite distinct from those he faces if he is also convicted of an aggravated felony. Under 8 U.S.C. § 1228(c) (2006), any noncitizen convicted of an aggravated felony is conclusively presumed to be deportable. The statute directs the Attorney General to provide for “special removal proceedings” for aliens convicted of aggravated felonies, “in a manner which assures expeditious removal following the end of the alien’s incarceration for the underlying sentence.” 8 U.S.C. § 1228(a)(1) (2006). Once removed, an alien convicted of an aggravated felony may never return to the United States. 8 U.S.C. § 1182(a)(9)(A)® (2006).
By contrast, the defendant’s status as an inadmissible alien does not mean that he would have been deported on that basis. Even if removal proceedings were commenced because of his inadmissible status, the defendant could have sought discretion-, ary relief under 8 U.S.C. § 1229b(b)(l) (2006 & Supp. VI) on the basis of hardship to his family.13 See Commonwealth v. Gordon, supra at 397-398 (“The United States Attorney General generally has the discretion to ‘cancel removal,’ allowing a noncitizen who is currently a permanent resident to remain in the country, but individuals convicted of an aggravated felony *142are ineligible for cancellation of removal”). If that relief were denied him, the defendant still would have become eligible to apply for a waiver to reenter the United States ten years after his removal. See 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). As the defendant’s submissions reflect, that option was foreclosed to the defendant upon his conviction of an aggravated felony.
Given the facts of this case, there is also a reasonable probability that no removal proceeding would have been commenced at all were it not for the defendant’s criminal conviction. Immigration officials exercise discretion and prioritize the use of limited resources to seek removal of criminal aliens convicted of the most serious offenses.
“A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See [8 U.S.C.] § 1229a(c)(4)[. See also 8 U.S.C.] §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure).”
Arizona v. United States, supra at 2499. The discretion that may be exercised
“embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children bom in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this [njation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.”
The United States Supreme Court has also recognized that, in addition to human concerns, there are national concerns that *143dictate the use of discretion not to remove an alien. “Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire [n]ation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. . . . Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.” Id. at 2498. These national concerns are reflected in the policies that prioritize which aliens will be removed. Id. at 2499.
There are many instances where it is “unlikely that the Attorney General would have the alien removed.” Id. at 2508, citing Memorandum from John Morton, Director, Immigration and Customs Enforcement (ICE), to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens 4-5 (June 17, 2011) (ICE Memorandum). As reflected in that memorandum, it is the policy of ICE to prioritize the use of its limited resources “to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national safety, border security, public safety, and the integrity of the immigration system.” ICE Memorandum, supra at 2. It does so by exercising prosecutorial discretion “not to assert the full scope of the enforcement authority available to the agency in a given case.” Id.
In this case, the record reflects that immigration officials waited until after the defendant was convicted of an aggravated felony to commence removal proceedings.14 Doing so was not only consistent with stated enforcement policies, but provided for an expedited removal to which inadmissible aliens are not subject. Conviction of an aggravated felony had the consequence of removal without the possibility of cancellation or return, in essence a banishment for life from the country that had been the *144defendant’s home since childhood. Had the defendant been afforded the opportunity, he could have negotiated a plea that, at the very least, would not have had the consequence of removal without any opportunity to return.15 As the defendant states in his affidavit, he had lived in the United States his entire adult life, and has family members in this country who depend on him; for him, the opportunities to petition for cancellation of removal or a waiver to return would have been “serious benefit[s].” See Commonwealth v. Martinez, 81 Mass. App. Ct. 595, 596 n.2 (2012).
Even under the framework employed by the court, and unquestionably under the prejudice standard enunciated in Padilla, supra at 1485; Flores-Ortega, supra at 486; and Hill v. Lockhart, supra at 59, the denial to the defendant of the opportunity to engage in a plea process, which had a reasonable probability of resulting in an agreement that would have preserved his opportunity to return to the United States — an opportunity more important to this defendant than the length of incarceration — requires that he now be afforded that opportunity.
Because the noncitizen defendant’s right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution was denied “at the only stage when legal aid and advice would help him,” Frye, supra at 1408, quoting Massiah v. United States, 377 U.S. 201, 204 (1964), and he suffered prejudice as a result, the defendant’s conviction should be vacated and his motion for a new trial allowed. The defendant, who placed particular emphasis on his immigration status, would then be in a position to participate in the plea phase, informed by the advice of counsel as to potential immigration consequences, and thus able intelligently to consider whether to accept any offered plea or proceed to a new trial.16
The court concludes that the defendant’s submissions in support of his motion for a new trial establish that his counsel was ineffective in several important respects: (1) counsel failed to provide the defendant information about the immigration consequences of his conviction, ante at 124, 126; (2) counsel failed to discuss with the defendant the possibility of plea resolution, notwithstanding his knowledge that the defendant faced possible deportation and that the prosecutor had twice approached him about the possibility of plea resolution, ante at 127; and (3) counsel failed to advocate for a lesser sentence, ante at 127-128.1 concur in this aspect of the court’s opinion. I would hold also that defense counsel’s failure to enter into plea negotiations with the prosecutor, after the prosecutor twice had expressed interest in plea bargaining, amounted to deficient performance. Under prevailing professional norms, defense attorneys are expected to engage in plea negotiations to attempt to obtain sentences that preclude or ameliorate immigration consequences. See K. Kanstroom & L.M. Glaser, Immigration, in Crime and Consequence: The Collateral Effects of Criminal Conduct § 8.7, at 8-25 (Mass. Cont. Legal Educ. 2d ed. 2009); K. Kanstroom, Immigration Consequences of Criminal Convictions, in Collateral Consequences of Criminal Convictions 19 (Mass. Cont. Legal Educ. 2001).
We apply a similar approach in the context of motions for a new trial based on claims of newly discovered evidence, where a defendant is not asked to provide proof that a jury provided with the proffered evidence would have *136found him not guilty. The standard in such circumstances is whether “there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial. . . not whether the verdict would have been different, but rather whether the new evidence would probably have been a real factor in the jury’s deliberations.” Commonwealth v. Grace, 397 Mass. 303, 306 (1986).
The court appears to add an additional requirement: that the defendant provide “proof that his counsel’s conduct as opposed to his undocumented status led to his deportation.” Ante at 131.
As the United States Supreme Court has recognized, “informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.” Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010).
The defendant states in his affidavit that his attorney never discussed his immigration status with him and “never discussed the immigration con*138sequences of a conviction for the charges.” He thus “did not know that a conviction would likely result in [his] being deported from the United States and never be[ing] able to return to be with [his] family.” Had he been advised of the potential immigration consequences of conviction, he “would have requested that [his] counsel engage in plea negotiations and attempt to work out a plea agreement that would not necessarily [have] rendered] [him] ineligible to remain in the United States” or, if he left, would not necessarily have prevented his return.
According to the prosecutor’s affidavit, between October 7, 2009 (the date of a lobby conference), and December 9, 2009 (the scheduled trial date), he discussed with counsel for the defendant and his codefendant “the possibility of resolving their clients’ cases prior to trial” but was informed that counsel “would not consider a plea because of immigration consequences for his client.” The trial was continued to February 16, 2010. Prior to that date, the prosecutor again approached defense counsel regarding the possibility of resolving the case. Counsel “reiterated that he would not consider a plea to the charges because of immigration consequences for his client.” Nothing in the record suggests that the prosecutor ever made any specific offer of a plea.
The President of the National District Attorneys Association has urged *139prosecutors to consider the immigration consequences of a defendant’s conviction “if we are to see that justice is done.” Johnson, Collateral Consequences, 35 The Prosecutor, no. 3, May-June 2001, at 5. Prosecutors have a duty to do justice, not to win cases. Commonwealth v. Shelley, 374 Mass. 466, 472 (1978), quoting Berger v. United States, 295 U.S. 78, 88 (1935) (“the prosecuting attorney ‘is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done’ ”).
Under G. L. c. 265, § 13A (b) (i), “[wjhoever commits an assault or an assault and battery . . . upon another and by such assault and battery causes serious bodily injury . . . shall be punished by imprisonment in the state prison for not more than [five] years or in the house of correction for not more than [two and one-half] years, or by a fine of not more than $5,000, or by both such fine and imprisonment.”
Under G. L. c. 272, § 53 (b), conviction as a disorderly person, “first offense, shall be punished by a fine of not more than $150. On a second or subsequent offense, such person shall be punished by imprisonment in a jail or house of correction for not more than [six] months, or by a fine of not more than $200, or by both such fine and imprisonment.”
An “aggravated felony” is a “crime of violence” as defined in 18 U.S.C. § 16 (2006), “for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F) (2006). A “crime of violence” is defined as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . .” 18 U.S.C.
Based on the judge’s sentence of nine months to be served in a house of corrections, with the balance of two and one-half years suspended, the record also indicates a reasonable probability — a probability sufficient to undermine confidence in the outcome — that the judge would have been willing to accept a plea to offenses carrying sentences of less than one year.
This court may take judicial notice of Federal immigration statutes and the decisional law interpreting and explaining the discretionary manner in which those laws are enforced. See G. L. c. 233, § 70 (“The courts shall take judicial notice of the law of the United States. . . whenever the same shall be material”).
Title 8 U.S.C. § 1229b(b)(l) (2006 & Supp. VI) provides that the Attorney General may cancel removal and grant legal permanent resident status to “an alien who is inadmissible or deportable” if the alien (1) has been physically present in the United States continuously for at least the prior ten years, (2) is a “person of good moral character,” (3) has not been convicted of certain crimes including crimes of moral turpitude, controlled substances violations, firearms violations, domestic violence crimes, falsification of documents, or aggravated felonies; and (4) can show that removal will “result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
Docket entries indicate that, at the conclusion of the defendant’s trial, on February 25,2010, the District Court “Received Request for [Facsimile Transmission] Copy of Docket Sheet from Immigration” and that a copy was sent by facsimile transmission on that date. After a notice of appeal was filed, on March 4, 2010, the court “Received via mail a request for both [facsimile transmission] and certified copies from Immigrations & Customs Enforcement.” According to the docket, copies were sent by facsimile transmission and certified copies were mailed to Immigrations & Customs Enforcement on the following day.
A plea to assault and battery, with a sentence of less than one year, would have achieved that result and, in terms of the period of incarceration actually served, would have been consistent with the sentence imposed after trial.
Allowance of a new trial has been preferred by courts confronted with similar circumstances, because “the remedy of a ‘new trial’ signifies not only a new trial but also a resumption of plea bargaining.” In re Alvernaz, 2 Cal. 4th 924, 942 (1992), and cases cited. See, e.g., United States v. Blaylock, 20 F.3d 1458, 1468-1469 (9th Cir. 1994); Carmichael v. People, 206 P.3d 800, 809 (Colo. 2009); People v. Curry, 178 Ill. 2d 509, 536 (1997).