THE ABSOLUTE NECESSITY OF FILING IN THE CORRECT COURT

By Edward Shulman (561 words)
Posted in Immigration Law on May 28, 2014

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Volumes have been written about the distinctions between the federal and state court systems. Each system has its own jurisdictional requirements. Federal courts generally have more restrictions on the types of cases which they possess the authority to hear. A recent case from a United States District Court in New Jersey reiterates these limitations.

The case involved a Honduran national who, all the way back in 1991, pled guilty to a drug offense in the Superior Court of New Jersey, a state-level court. At that time it was not the practice for criminal defense counsel to advise their clients – or trial judges to notify the defendants before them - that they could be subject to deportation if they were convicted of certain criminal offenses. That state conviction eventually resulted in his deportation, but he did return to the United States without authorization for which he was subsequently prosecuted for illegal re-entry, a federal crime in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2).

While being held in federal custody, this defendant, Jose Monroy Villeda, filed in the federal district court a petition for a writ of error coram nobis, asking this Court to set aside his 1992 state court conviction for a felony drug trafficking offense. The argument his counsel advanced for setting aside the conviction was that, at no time before or during the hearing at which he tendered his guilty plea to the drug trafficking charge, did his criminal defense attorney advise him of the risk of deportation for having this conviction on his record. As the United Supreme Court determined a few years ago, in Padilla v. Kentucky, 559 U.S. 356 (2010), that such non-citizen defendants should be advised of such risks before a court can accept a plea to a criminal offense, Mr. Villeda contended that his 1992 conviction should be vacated.

The federal court could have potentially disposed of the case by noting that Chaidez v. United States, 133 S.Ct. 1103 (2013) does not permit the retroactive application of the holding in the Padilla case. But it did not even get that far. Because of the jurisdictional issue regarding whether it had the authority to even consider a writ of error coram nobis, it dismissed the case for lack of jurisdiction. In its opinion, in Villeda v. U.S., Civil Action No. 12-7449 (MLC). (US Dist. Ct. D. NJ 2014), the District Court suggested that such a writ would need to be brought in the court – the Superior Court of New Jersey - in which he was convicted not in this federal court. The mere fact that he was being held in federal custody for a federal crime did not confer such jurisdictional authority upon the District Court to hear this particular issue.

At The Shulman Law Group, LLC our immigration lawyers have experience with those who are in the United States, and have been charged or convicted of a crime, and are subsequently placed in deportation or removal proceedings.  Our lawyers are constantly seeking to find creative solutions to our clients' deportation problems by staying abreast of new laws and regulations in addition to federal court decisions affecting immigrants. We also vigorously pursue post-conviction remedies in criminal cases to create affirmative defenses from deportation and /or removal, or to allow aliens to qualify for deportation /removal discretionary waivers.   

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To make the long story short - I wouldn't be here now writing this review if it wasn't for him. He fought with me and for me as if he was defending himself and not some stranger from a foreign country. I will highly recommend him - if your case has any chance at all he is the one you need.

-Immigration Client

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