Miami Aliens with Old Criminal Convictions Have Another Chance to Set Those Convictions Aside to Avoid Immigration Consequences

The United States Supreme Court’s decision in Padilla has changed the law as it relates to setting aside a criminal conviction based upon the ineffective assistance of a criminal defense attorney. Every lawyer is required to advise their client of the potential immigration consequences that may result from their taking a plea. Prior to Padilla an alien had to prove that their criminal defense lawyer gave them affirmatively bad advice to have their conviction set aside. Now if the accused can demonstrate that their attorney gave them no advice at all, that can be sufficient to set aside the conviction.

Because of this change in the law the Eleventh Circuit Court of Appeals have determined that convicts have two years from the date of the Padilla decision (March 31, 2010) to argue that this change in the law gives them a new opportunity to set aside their criminal conviction. This applies even if you have already sought to set aside your conviction and failed.

However, the Florida appellate courts, specifically the Third District Court of Appeals, which encompasses Miami, have determined that if the court advised a client of their immigration rights, that may negatively impact an immigrants ability to set aside their conviction. On the other hand, clients who took pleas in Miami-Dade County have a leg up because more often than not, they do not sing colloquy form or attest to the facts which support their convictions.

As you can see there are many facts that could impact your ability to set aside the conviction. However, if you have a conviction and you thought it was too late to do something about it, now may be your chance to take action. Contact a criminal defense attorney now to determine if your case meets the Padilla criteria.