Motion to Vacate Granted
Posted on Oct 26, 2011 10:26am PDT
After nearly a year in immigration custody, our client sees the light at the end of the tunnel.
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In July, our firm filed its motion to vacate our client's August 2010 conviction which was just 5 months after the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). As most of you know, the Padilla decision established that a criminal defense lawyer MUST advise his non-U.S.-citizen client of the mandatory immigration consequences that may result from a plea to a criminal charge. Failure on the part of the attorney to advise his client results in ineffective assistance of counsel.
After some weeks of litigation, an evidentiary hearing and finally, legal arguments, the circuit court judge presiding over our client's case sided with us and concluded that 1) the client was never informed that his deportation from the U.S. would be mandatory as a result of his 2010 plea to state criminal charges, 2) had the client known that his plea would result in mandatory deportation, he would have chosen to exercise his right to a jury trial rather than accept a plea, and 3) the Court's advisory warning pursuant to 3.172(c)(8) that the client "[is] subject to deportation" was not sufficient to cure the attorney's lack of advice about immigration consequences.
In short, our client's immigration case now stands a chance of being terminated. We will continue to aggressively pursue a resolution for the client that would allow him to remain in the United States.