Skip to main content

Can my husband vacate a plea after deportation?

New York, NY |

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?

Attorney Answers 5

Posted

You need to hire an attorney. This is a very complicated matter that needs to be addressed in person. Good Luck!

Mark as helpful

4 lawyers agree

Posted

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.

Mark as helpful

2 lawyers agree

4 comments

Asker

Posted

2006 felony was "criminal sale of a dangerous drug 4th degree"- his legal aid told him to plead guilty and be done with the case- we filed a 440 motion on ineffective counsel- got denied- we did an appeal with the appealate division- got denied- he had a deprotation order from 2007 that we didnt know about- removal in absentia- we filed a motion to reopen- got denied- we did an appeal- got denied- did another appeal got denied

Irene Vaisman

Irene Vaisman

Posted

I am sorry. Was all of this done with an attorney?

Asker

Posted

Yes Sent from my HTC One™ S on T-Mobile. America’s First Nationwide 4G Network. ----- Reply message -----

Irene Vaisman

Irene Vaisman

Posted

if you have all the paper work, another attorney can review what was done - that's really the only thing I can suggest at this time

Posted

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.

Mark as helpful

2 lawyers agree

1 comment

Asker

Posted

ineffective counsel...we submitted a 440 motion that got denied- we appealed it in the appellate court and it got denied as well.

Posted

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.

Mark as helpful

2 lawyers agree

Posted

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 minute consultation! THE ESTRELLA LAW FIRM, P.C. “LEGAL REPRESENTATION AND CONSULTING SERVICES THAT GO THE EXTRA MILE” -- 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

Mark as helpful

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics