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Why a Motion to Vacate a Plea and Conviction in a Criminal Case may be an Immigrant’s only Defense to Deportation.

Just like American citizens, sometimes immigrants find themselves on the wrong side of law. Whether its a DUI or possession of a small amount of marijuana, even the most minor criminal offense can have devastatingly negative immigration consequences for non-citizens.

Can a lawful permanent resident be deported for a DUI? The answer is no, however, that DUI combined with other criminal arrests and convictions can make USCIS deny a green card holder’s application for citizenship. Can a DUI make someone with no status deportable? Again, the answer is no, but a DUI will stop someone from getting DACA (Deferred Action for Childhood Arrivals) and other forms of Prosecutorial Discretion.

The crime that is much worse for both lawful permanent residents and for immigrants with no status is possession of any controlled substance, even a small amount of cannabis for personal use. For an immigrant with no status, a conviction for any federally controlled substance in any amount will likely lead to detention, removal proceedings and bar almost all forms of relief from removal. Yes, this includes a misdemeanor amount of cannabis for personal use.

For lawful permanent residents, the law is almost exactly the same, but one conviction for less than 30 grams of cannabis for personal use or the paraphernalia that goes along with it, will not make you deportable. However, a second conviction for any drug offense, even misdemeanor cannabis, will make you deportable. More importantly, if you have a green card and one conviction for a small amount of cannabis, you may not be deportable, but if you leave the U.S. and come back, you can be detained, put in immigration court and deported because you are inadmissible!

Ahhhhhh, the crazy and confusing world of immigration law strikes again. This is why I always tell people and my criminal defense attorney collegues, if you are not a citizen and you get arrested for anything, even if you are innocent, you need an experienced and knowledgeable immigration attorney on your legal team and you need one immediately. Check out our dedicated Crimmigration Consultation page for more information: http://www.floridacrimmigration.com

Now on to the subject of this blog, if you are not a citizen and you have a conviction for a crime that makes your deportable or inadmissible to the United States, or a conviction that will bar you from getting a green card or other forms of immigration relief, then your only hope to stay in this great country may be to vacate your plea and set aside that conviction.

I recently had a client who was a lawful permanent resident. Orlando, Florida has a practice where local law enforcement officers can give people tickets for certain minor crimes, like misdemeanor possession of cannabis and trespassing. My client was stopped by the Orange County (Florida) Sheriff’s Office, who found a marijuana cigarette in his pocket. The Deputy told my client it wasn’t a big deal, gave him what looked like a traffic ticket and told him he could simply pay a fine or he could go to court and fight the ticket. My client, being young, not speaking English as well as Spanish and having a busy schedule of work and school decided to just pay the ticket and move on with his life.

My client had no idea that by paying the ticket, he has just pled no contest to possession of cannabis, a criminal offense. Like many people who received these tickets for criminal offenses, he thought this was a non-criminal, civil matter, and had no idea he had pled to a crime.

While my client could not be deported for a single conviction for possession of less than 20 grams of cannabis, he came to me for advice nonetheless. He was wise to do so because I was able to warn him that the trip he was planning back to South America, he should put that on hold until we could vacate his plea and conviction. I warned him that when he came back from his trip, immigration officers at the airport were likely to give him problems because of that conviction and send him to secondary and then deferred inspection and then, unfortunately to immigration court.

Thankfully, we were able to go back and vacate his conviction because he had no idea he was pleading to a crime when he paid that ticket, no idea of the immigration consequences of paying that ticket and his rights were violated.

Sounds simple enough, and many people think they can just go back and seal or expunge their convictions and then immigration officers cannot use it against them. Wrong! Immigration Judges and officers can use convictions to deport you even if you had them sealed in criminal court. The only way to make a prior conviction go away so that immigration cannot use it against you is to vacate that plea and conviction, and do it for the right reason.

I recently read a federal case from Colorado where an immigrant had a criminal conviction that made him deportable from the United States and he went back to the criminal court an asked to have his conviction vacated. The Judge agreed and vacated the conviction, but the Judge did it for the wrong reason. That’s right, even if your criminal court judge vacates your conviction, and the government drops the charges, unless your plea and sentence are vacated for the right reason, immigration can still use that conviction against you!

What? How is that possible, how can immigration use a conviction against you that doesn’t exist any more in criminal court? Its simple, unless you vacate your conviction for valid constitutional reasons, such as, your attorney or the Judge did not tell you you can or will be deported for this conviction, the conviction stands for immigration purposes. Do not ask the criminal judge to vacate your conviction because you don’t want to be deported. Do not ask the judge to vacate your conviction because you are a good person and you want to stay and work and take care of your kids. A conviction vacated for these purposes will still be a conviction for immigration purposes!

If you need more information about vacating your criminal conviction in Orlando, Jacksonville or anywhere in Florida, call Shorstein, Lasnetski & Gihon.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
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