QUESTION
Can I still vacate sentencing if I was deported?
Asked on Apr 20th, 2013 on Immigration - Utah
More details to this question:
I am a former lawful permanent resident and was deported for having served a 1 year sentence which made it an aggravated felony for immigration purposes. However, I was never told by my attorney or the judge that it would be a deportable offense. This was back in 2004. I have recently heard of a decision in 2010 that obligates criminal attorneys to disclose this, but can I still vacate the sentencing?
5 ANSWERS
Criminal Defense Attorney serving Alhambra, CA
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Francis John Cowhig
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Your question requires an attorney consultation. It is not a simple question that can be answered on this type of forum. There are many factors that would need to be considered and evaluated. The short answer is possibly. I strongly suggest that you contact an criminal defense attorney experienced in post-conviction relief for a face-to-face consultation and give him/her all of the facts surrounding your situation. He/she would then be in a better position to analyze your case and advise you of your options.
Answered on Apr 24th, 2013 at 3:34 PM
It may depend upon which state the conviction was entered. If in the State of Illinois, then this can be challenging based upon a Supreme Court case that may still be under review through other decisions now pending at the U. S. Supreme Court. In general, if you were convicted at the time of deportation, then it is unclear how a vacated case will affect you. If the case was vacated and you had court, then you can try to work with an immigration attorney to seek what is called humanitarian parole in an attempt to enter the U. S., so that you can appear at your court case. However, the conviction is over eight years old and it is unclear whether State law will be used to stop you from pursuing a Petition to vacate the conviction. Such efforts are generally barred due to the time frame, but new evidence, if unavailable at the time of the conviction or plea may help you in your efforts. I strongly recommend a teleconference with a competent and experienced immigration attorney. The above is general information, not legal advice, and does not create an attorney client relationship.
Answered on Apr 24th, 2013 at 3:33 PM
A complicated question in light of the recent Supreme Court decision. If the plea was made in New York, you might have a chance but all the details are needed to advise you.
Answered on Apr 24th, 2013 at 3:33 PM
Criminal Law Defense Attorney serving St. George, UT
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Edward D. Flint Attorney at Law
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The decision you heard of is the Padilla case, and yes, you may have some options for vacating your conviction, or at least amending it to a misdemeanor with a jail sentence of less than one year.
Answered on Apr 24th, 2013 at 3:32 PM
Immigration Attorney serving Arlington, TX
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Law Office of Pho Ethan Tran, PLLC
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You can try to overturn your criminal conviction if you plead guilty or no contest to a criminal charge at the advice of your attorney who failed to inform you of the immigration consequences of being convicted of a deportable offense.
Answered on Apr 24th, 2013 at 3:32 PM