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Regional Director of Florida Immigration seeking to deport felons

September 16, 2010

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The new regional field director for Florida's Immigration and Customs Enforcement (ICE) apprehension and removal department issued a public statement indicating that his department is stepping up efforts to remove or deport illegal immigrants with prior felony convictions. According to Marc Moore, the agency is shifting its focus on capturing and deporting illegal immigrants with past criminal records. According to ICE records, they were responsible for deporting 136,000 convicted criminal aliens in 2008 - 2009 and that they agency has already deported 170,000 individuals this year. In the event you or someone you know is picked up by ICE authorities and is currently detained, it is imperative to consult with a Miami criminal defense lawyer that has extensive experience in vacating or setting aside criminal convictions.

In most instances, the only way to secure someone's release from immigration custody is to have a judgement and sentence vacated and secure a nolle pros or dismissal of the charges from the prosecutor's office handling the case. The first step in the process is to order the file from the clerk's office. Many of the cases that are subjecting people to deportation are cases that occurred in the 1990's. These files are kept in storage and must be reviewed before filing a motion for post-conviction relief. After the file has been received, all documents in the file must be reviewed including the arrest affidavit, information, judgement and sentence and typed plea colloquy.

Once the file has been ordered, it is necessary to track down the court reporter in an effort to obtain the transcript of the plea that was taken years ago. If the court reporter or the transcript is not available, the court reporting agency will submit an affidavit to that effect. The Supreme Court recently handed down a decision in the case of Kentucky v. Padilla, which allow individuals to file motion for post-conviction relief for individual that received mis-advice from their trial lawyer regarding immigration consequences that could occur as a result of entering into a plea. Recently, Florida law has gone further to say that affirmative mis-advice from counsel can be cured if the trial judge accepting the plea informed the person of the potential immigration problems such as deportation as a result of accepting the plea. If the transcript of the plea does not exist, defense attorneys have more flexibility in drafting their motions for post-conviction relief.

A person's criminal record will go a long way in determining whether a motion for post-conviction relief will be granted. Before agreeing to the motion the prosecution will generally run a background check to determine if the person seeking relief has a prior criminal record. The prosecution will also look at the charge(s) that were pled to in the case seeking to be vacated. For example a person charged with cocaine possession, marijuana possession or lower level theft charge is more likely have their conviction vacated that a person convicted of armed robbery and sexual battery. Another important fact to remember is that ICE does not distinguish between a conviction and a withhold of adjudication. Finally, the jurisdiction where the case is closed, the judge and prosecutor currently handling the case will have a significant impact in determining whether a motion to vacate is granted. Also remember, just because a case is vacated, it is still a pending case and needs to be nolle prossed or dismissed to affect a release from immigration custody.

Florida Immigration Chief Says Felons are Top Priority, The Palm, September 8, 2010.
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