LEGAL GUIDE
Written by attorney Nicklaus James Misiti | Jan 25, 2013

440 Motions to Vacate a Criminal Conviction and Immigration. Call 212 537 4407

Although not filed in immigration court, a 440 motion to vacate a criminal conviction can prove to be very useful in immigration proceedings. This is because many individuals are convicted of charges that leave them with little to no immigration relief, such as aggravated felonies or drug trafficking crimes. If that conviction no longer appears on their record they may have many options to remain in the US.

A successful motion to vacate will make it as if the conviction never occurred and may allow the alien access to many types of immigration relief that were not previously available, such as adjustment of status, asylum, cancellation of removal or many others.

The most common reason to vacate a conviction in the immigration context is under the recent Supreme Court case Padilla v. Kentucky. In that case the Supreme Court ruled that a criminal attorney has the duty to advise a non citizen of any immigration consequences that would result from a plea they accept.

The Supreme Court reasoned that it is not effective counsel if the criminal attorney does not properly advise their client of any immigration consequences they will suffer as a result of the plea.

The successful 440 motion must show that the alien was not advised of any immigration consequences or was misadvised and that this failure prejudiced their decision to take the plea. In order to show the ineffective assistance prejudiced their case, they must show that they otherwise would not have accepted the plea had they known of the immigration consequences.

The motion must be filed in the same court where the alien was convicted, it should also be served on the District Attorney’s office or it will not be considered to have been properly filed and will be dismissed. In certain cases the district attorney will be willing to negotiate a new more favorable plea or simply throw the conviction out. In other cases they will not be willing to do this and the judge will determine the merits of the case with or without a hearing.

There are many substantive and procedural hurdles which must be met to get the conviction vacated. It is not enough that you were not properly advised by your criminal attorney; you must also prove this and follow all the rules and regulations of the court. As such it is extremely important that these applications are prepared by an experienced attorney. It is also useful if that attorney has experience and knowledge of the immigration laws because often the criminal court judge and staff have only limited knowledge and it will do a world of good if they can explain in simple terms the immigration consequences you are suffering as a result of the plea in simple terms.

Additional resources provided by the author

Contact the Law Offices of Nicklaus Misiti at 212 537 4407 or fill out the form on his website, www.misitiglobal.com. Nicklaus Misiti practices criminal immigration law throughout the state of New York and has experience in effectively dealing with criminal immigration issues and in filing motion to vacate.

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