Mandatory Detention/Deportation

[roxannez28]

My fience is in Hudson County Jail, New Jersey. ICE picked him up 9 months after he was released and rehabilitated on December 13, 2007. He was in the Drug Court program, which was very successful. He is now mandatorily detained (no bond or bail) and faced with deportation. Unaware that he would be deported if he plead guilty to drug distribution charges, he is now filing for Post-Conviction Relief (PCR) in the county in which he was sentenced. The question, if anyone knows,
While his PCR is pending to try to vacate his charges, is he considered to be relieved of Mandatory Detention? Must INS release him immediately upon filing of the PCR?

Please advise. He is going to continue Drug Court, he just needs his charges vacated for immigration purposes. Any help would be greatly appreciated. He has an attorney, but I am unsure if she is properly versed in such a complex matter.
roxanne

[MDawg]

This is a complex matter and must be handled properly in order for him to benefit at all.

First of all, immigration does not stay removal proceedings when the conviction is being collaterally attacked (trying to vacate the plea, such as via a writ of error coram nobis). It does stay proceedings when the conviction is under direct appeal.

Secondly, immigration views proceedings such as Drug Court as flat out convictions. In fact, outside the 9th Circuit immigration does not differentiate between a drug program "conviction"and a flat out regular conviction. Now, as you probably know, any aggravated felony (AF) or controlled substance offense that results in release from custody after October 9, 1998, results in mandatory detention.

Therefore, since his matter is viewed as a controlled substance conviction (and as well, an AF since it is for distribution of drugs, which equals a trafficking offense), he is suibject to both mandatory detention and mandatory removal so long as the conviction remains.

If he is successful with his collateral attack (and two of the grounds for coram nobis relief would be that he did not receive the benefit of his plea bargain - that he thought the conviction would not exist for any purpose once he completed the program but now has discovered that it will exist for imm. purposes and result in mandatory removal, such that his plea was not entered knowingly, voluntarily and intelligently), then of course his conviction would no longer exist and he would be fine.

However, the plea must be vacated for procedural and substantive defects such as I mention above. If the order or the proceedings indicate that it was vacated to avoid immigration consequences, DHS will not accept it and will proceed with removal anyway.

[roxannez28]

THANK YOU SO MUCH FOR TAKING THE TIME TO ANSWER. I WILL INVESTIGATE THESE VIABLE OPTIONS YOU GAVE TO ME. HIS PCR IS BEING FILED AS WE SPEAK. ONE MORE QUESTION, ONCE THE PCR IS FILED AND ACCEPTED, IS HE STILL CONSIDERED TO BE MANDATORILY DETAINABLE? NOT SURE AS TO HOW LONG IT WILL TAKE TO VACATE HIS CHARGES IN MORRIS COUNTY, BUT I AM ALMOST POSITIVE THAT DUE TO HIS OUTSTANDING ACHIEVEMENTS IN DRUG COURT, THEY WILL BE VACATED DUE TO HIS INEFFECTIVE COUNSEL.

Thanks again.

[MDawg]

I already answered that. The mere filing of the vacatur motion has no effect whatsoever on his immigration case.

Also, keep in mind - in California at least, ineffective counsel is NOT a valid grounds for coram nobis. For example in Florida, it is. In the 9th circuit, federal court, it is. So you must be careful and research the law in your jurisdiction on this.