Can my husband vacate a plea after deportation?

Asked 5 months ago - New York, NY

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My husband has a felony charge for something he did not do. He is being deported. We have put in a motion to vacate the plea before and it was denied- we appealed it and they didnt even look at it just denied it again.

Can we try to vacate this plea again while he is in his birth country?

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Attorney answers (5)

  1. Licensed in NY

    Pro

    Flushing Immigration Attorney
    Contributor Level 12

    4

    Lawyers agree

    Answered January 17, 2013 13:28. You need to hire an attorney. This is a very complicated matter that needs to be addressed in person. Good Luck!

  2. Licensed in NY

    New York Immigration Attorney
    Contributor Level 18

    2

    Lawyers agree

    Answered January 17, 2013 13:39. yes and then there is a special process of coming back in. I do not know who handles the 440 motion (to vacate the felony), but there are attorney who do these things only, they so to say "specialize" in vacating convictions

    This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.
  3. Licensed in NY

    New York Personal Injury Lawyer
    Contributor Level 20

    2

    Lawyers agree

    Answered January 17, 2013 13:52. It is very hard to vacate a plea but I've succeeded in the past. What is the basis for your motion? When you say you have appealed what court are you talking about?

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases.... more

  4. Pro

    Houston Immigration Attorney
    Contributor Level 20

    2

    Lawyers agree

    Answered January 17, 2013 14:37. Why would one plead guilty for a crime they did not commit? Once you plead guilty in state court, you are guilty for immigration purposes. ICE will rely on court transcript rather than one's explanation as to why they pled guilty.

    Also, if a plea were to be set aside, the case would have to be final for immigration purposes. More significantly, the "specific facts" of the criminal case will affect the outcome of your immigration case even if your guilty plea is set aside. The "facts" are a special concern if it is a crime of "moral turpitude". Do consult an experienced immigration attorney for a consultation.

  5. Licensed in NY

    Jackson Heights Immigration Attorney
    Contributor Level 13

    Answered January 22, 2013 13:30. Yes. You can file a 440 motion in NY to vacate the conviction or attempt to. An experienced criminal and immigration attorney is needed to handle this as it is a difficult situation. I concur that Padilla may be the key as it was unlikely he was advised of the immigration consequences of pleading guilty to a felony. A thorough review of the record must be made. Do not delay. Act now.

    Hire a lawyer to protect your legal rights.
    Jeffrey J. Estrella, Esq.
    Licensed Attorney and Counsellor At Law/Abogado y Licensiado
    Licensed in New York, New Jersey, and Connecticut
    The Estrella Law Firm, P.C.
    75-20 Astoria Boulevard, Suite 170
    Inside The Bulova Corporate Center
    Jackson Heights, NY 11370
    T. (347) 628-2391
    F. (718) 672-4728
    E. Estrella.Jeffrey@gmail.com
    www.EstrellaLawyer.com

    The answers posted herein are not legal advice and no attorney-client relationship exists. Call for a free 20... more
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