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Immigration authorities arrest thousands

Posted on April 03, 2012 3:00 AM EST

Over a six day period, Immigration and Customs (ICE) agents arrested 3,168 foreign nationals. The crackdown is the largest since 2009. Of those arrested, 139 individuals were picked up in Miami-Dade, Broward and Palm Beach Counties. The majority of those arrested had criminal convictions for crimes such as murder, kidnapping, drug trafficking and certain sexual offenses. The large number of arrests will have immigration and criminal lawyers seeking ways to extricate family members from immigration custody. Others arrested by ICE agents were foreign nationals who have failed to comply with deportation orders or have illegally returned to the United States. Even though a person is being held by immigration authorities, all hope is not lost.

For years Miami criminal attorneys have represented foreign nationals set for deportation as a result of their criminal records by filing motions for post-conviction relief. While lawyers that specialize in immigration law are crucial to securing a person's release, more often than not, the problem lies with a criminal record that was acquired many years ago. Lawyers that practice in the area of criminal law are often contacted by immigration lawyers who request that criminal records be set aside. Over the years, the laws regarding the rights of foreign nationals who enter no contest of guilty pleas to criminal charges have changed and the rights afforded to foreign nationals have been severely diminished. For example, the years ago, the Florida courts were instructed to advise defendants that if they entered a plea in a case, they could be subject to deportation. After the mandate came into effect, judges sometimes failed to advise defendants what were deemed "immigration warnings". On other occasions, transcripts of the plea colloquy were unavailable due to the age of the case.

If a judge either failed to warn a defendant about immigration consequences or a transcript proving that the warnings were provided no longer existed, a skilled defense lawyer could file a motion to vacate, thereby setting aside the criminal record. The motions were regarded as Peart and Green motions. However, after thousands of successful motions to vacate, the Florida Supreme Court set a cut-off date of two years after the plea was taken to file the motion for post-conviction relief. With that being said, foreign nationals with old convictions no longer have standing to file these motions in circuit court. The Supreme Court of the United States in the Padilla case, ruled that affirmative mis-advice from a criminal defense attorney regarding the immigration consequences of entering a plea could allow for a judgement and sentence to be vacated. The Supreme Court did not address whether the law applied retroactively, meaning that allegations of mis-advice could have occurred years before the ruling was handed down.

Certain appellate courts in the State of Florida have ruled that the law set forth in Padilla does not apply retroactively. Any plea taken prior to March 31, 2010, regardless of mis-advice of counsel, is not entitled to be vacated for that reason. The Supreme Court of Florida is currently deciding whether to apply Padilla retroactively. Obviously, if the law is held to be retro-active, a large number of foreign nationals facing deportation would have a legitimate chance to stay in the country if the appropriate motion is filed by an attorney and granted by the court. Unless the Supreme Court reverses the rulings of the appellate courts, motions to vacate have a limited chance of success. The best way to avoid deportation under the current state of the law is to present a mitigation packet to the prosecuting authority which contains records regarding a foreign national's children, tax returns, and letters from employers, friends and families stating the person set for deportation is worth keeping in this country to raise his or her family and to contribute to society. Effective mitigation packets can successfully allow for a judgement and sentence to be vacated. The result of course will depend on the charge to which a plea was entered. Simple drug offenses like cocaine or marijuana possession charges are more likely to be vacated than violent crimes like aggravated battery or sexually motivated offenses. Anyone trying to get a friend of loved one out of immigration custody must speak with a lawyer with experience in success in getting judgements and sentences vacated.

ICE Makes Record Arrests in Nationwide Crackdown, Miami Herald.com, March 2, 2012.