August 9, 2010: Vacation of Plea Under Padilla v. Kentucky
Vacation of Plea Under Padilla v. Kentucky
If one pleads guilty to drug possession and is in ICE custody can they reopen their case under Padilla vs Kentucky?
It appears that you are referring to a Motion to Vacate based on the Supreme Court Decision in Padilla v. Kentucky. Generally speaking, a Padilla motion is a request to a criminal court judge to vacate a plea and the judgment and sentence that resulted from it. The main argument that is made in a Padilla motion is that the person was given advice about the immigration consequences of their criminal plea that was below the standard of professional norms and that it is clear that the person would be subject to removal as a result of the plea.
For immigration purposes, withhold of adjudication and a nolo contendere (no contest) plea are considered convictions under the immigration law. In turn, that conviction may render a person removable from the United States. Generally, a vacated plea means that the conviction no longer exists. Assuming that the plea is successfully vacated, and depending on other facts that may or may not exist relating to the conviction, the person may be eligible for relief from removal.
It may be wise to consult with both an experienced immigration and criminal attorney to discuss all of your options.
Michael Shane and Evan Shane, Immigration Attorneys