How to Avoid Deportation by Withdrawing a Plea

Buyer’s Remorse is a very real phenomenon in criminal cases.  It’s difficult for judges and defense attorneys to think of all the ways in which a criminal case can impact a person’s life.  Who would think that an apartment application would be denied based upon a misdemeanor?  Sadly, it happens.  Today, we’re going to look avoiding deportations that are caused by a plea in a criminal case.  For some people, undoing a plea will pull them right out of deportation proceedings, so let’s take a look at how this works.   flags

[Shameless plug] I have filed my share of Motions to Withdraw Plea based upon the fact that a previous lawyer never informed their client of the fact that they would be deported once the Federal government discovered the plea.  Sometimes, these motions are called 3.850 Ineffective Assistance of Counsel claims, and these big legal words can be summarized as follows;  “Judge, please let me withdraw my plea because my lawyer never told me I would be deported as a result of this plea”. Other times, these claims are just a simple Motions to Withdraw Plea.  When the defense attorney fails mention the potential immigration consequences of a plea, the client may be entitled to withdraw the plea, but several other factors must be present to pull this off.  By “several”, I mean six or seven, so you’ll really have to be interested in this topic to get through every one of them.  Enjoy.

First, the court is going to look at what warnings (if any) were given to the defendant in court.  Was the defendant told he “may” be deported if he enters a plea?  Was he told he “would” be deported?  Or, was he told nothing at all?  If the judge’s warning was wishy washy—like you “could” be deported—then the analysis continues (See Padilla v. Kentucky, 559 U.S. 356 (2010), and Cano v. State, 112 So. 3d 646 (Fla. 4th DCA 2013).

Second, the court is going to examine the basis of the deportation.  Is the plea at issue the sole basis for deportation?  If so, the analysis continues.  If there are other grounds for deportation, the motion will be denied.  Third, did the law at the time of the plea subject the defendant to automatic deportation?  Fourth, did the immigration statute at the time make this “automatic deportation” clear to the defendant?  As a practical matter, I’m not sure how this factor is proven, but it’s considered a “factor”, so I’ve got to mention it.

Fifth, there must be a showing that the attorney failed to tell the defendant about the immigration consequences of the plea.  Some defense attorneys have their clients sign deportation consequences forms to keep in the file, just in case this issue comes up. Orange County and Osceola County have this issued spelled out on their plea forms, and the section requires the defendant’s initials.  It’s tough to enter a plea in Orange or Osceola County without proper notice as to the immigration consequences of the plea.

The sixth factor is an easy one.  It requires the defendant to tell the court that they would not have entered the plea had their attorney advised them of the immigration consequences.  Of course, the problem here is all the urban legend surrounding deportation.  I can’t tell you how many clients “know friends with worse charges” that have not been deported.  Because my friend’s friend’s girlfriend got away with, I will too, right?  Yes, this is horrible logic, but there’s an ounce of truth to it, and that’s all the evidence some folks need.

Finally, the key factor is that the defendant must prove that he was legally in the country at the time of the plea (yes, this factor is a close relative to the second factor, but redundancy is pretty common in the legal system, and the more factors a judge can come up with, the smarter they appear, or so I’ve heard).  To see how this final factor breaks down in real life, let’s examine the recent case of Yanez v. State, 2015 Fla. App. LEXIS 5596 (Fla. 2nd DCA 2015).  Yanez was on her way to being deported, in part, because she was “an alien who [had] committed a crime involving moral turpitude for which a sentence of more than one year may be imposed.” Id. The form of her motion was an ineffective assistance of counsel claim (Fl. Rule of Crim. Pro. 3.850) alleging that her attorney did not warn her about the deportation consequences of her plea on a felony public assistance fraud case.  I’m not quite sure what Yanez expected here, being in the country illegally, and committing public assistance fraud.  Ripping off the government sounds like a good way to get a free plane ride home.  Anyway, to show that her counsel was ineffective, Yanez was required to prove two things, (1) that her attorney’s services were deficient, and most importantly (2) “that the deficient performance prejudiced the defense.” Id.

Now, how do you prove prejudice if you’re already subject to deportation?  You can’t.  The court denied Yanez’ motion, reasoning that, “[w]hen she entered the plea, Ms. Yanez knew that she was in this country unlawfully and that there was a possibility that she would be deported. . . .Accordingly, we conclude that because Ms. Yanez was in this country unlawfully and was subject to removal on that basis alone, she cannot establish that she was prejudiced by her counsel’s failure to advise her that she was subject to deportation.” Id.