US Supreme Court Rules Before Florida Supreme Court on Retro-Activity of Padilla

February 26, 2013

The United States Supreme Court has dashed the hopes of many illegal immigrants who are awaiting deportation or trying to obtain their residency. Miami criminal lawyers who represent clients in post-conviction relief matters have been anxiously awaiting the Florida Supreme Court to rule on the retroactivity of Padilla type cases, got their answer from the United States Supreme Court. The high court ruled 7-2 that immigrants cannot withdraw guilty or no lo contendere pleas in cases that were resolved prior to March 31, 2010. In 2010, the Supreme Court ruled that defense attorneys had an affirmative obligation to advise defendants of potential immigration consequences prior to entering a plea. If a defense lawyer failed to advise or provided affirmative mis-advice regarding the potential immigration consequences, such as deportation, a defendant was entitled to file a motion to vacate and re-open the case.

The Supreme Court in Chaidez ruled that the defendant, a lawful permanent resident since 1977, could not vacate her 2004 conviction for insurance fraud. The conviction will most likely lead to the denial of her continued residency and eventual deportation. Her motion to vacate was based on the fact that her defense lawyer at the time she took the plea did not advise her of the risks of deportation by entering the guilty plea. While the Supreme Court ruling in the Chaidez finally decided the retroactive question, that does not mean that a motion to vacate cannot be won in court. However, a successful motion to vacate will now largely be won based on negotiations and stipulations made with prosecutors, rather than based on the law.

The likelihood of a success ful motion to vacate no longer rests on the law, but must be argued on the equities. The success of a motion to vacate for immigrants being deported or unable to gain or maintain their residency and eventual citizenship will be determined by a number of factors. The first factor to consider is the jurisdiction where the plea was taken. In light the newest case, it is highly unlikely to find effective relief in federal court. Had Chaidez gone the other way in the Supreme Court, immigrants might have had a chance in district court. As far as state courts go, success will be determined by the policies of each particular state attorney's office in Florida. The Broward County State Attorney's Office has a firm policy against agreeing to vacate pleas. Miami-Dade County prosecutors seem to be much more flexible. Generally, an agreement to vacate a plea is left up to the division chief, or head prosecutor, in any particular courtroom. Some division chiefs are flexible, while others won't give you the time of day. In the end, an immigrants chances of obtaining his residency or averting deportation will in some aspects depend on the luck of the draw.

Now that the law has been handed down, what does it take to win motion to vacate? Assuming a particular division chief is willing to entertain a motion to vacate, an extensive mitigation packet will have to be compiled. Items that will be needed for the mitigation packet include tax returns, birth certificates, marriage certificates, and of course letters from various individuals explaining why a particular person should be permitted to remain in the United States. Anyone seeking to vacate a plea must retain a qualified criminal attorney experienced in handling these types matters. Any attorney who files a motion and expects to win before a judge has no clue what he or she is doing and will lose the motion. Hire a lawyer with a good track record when it comes to winning these types of cases.

Supreme Court Won't Extend 2010 Immigration Ruling, Reuters.com, February 26, 2013.