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?
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
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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. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.
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.
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.
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