Vacating a plea
A plea entered without correct advice about its immigration consequences can be vacated by the criminal court that took it. The claim is ineffective assistance of counsel under Padilla v. Kentucky, and it has three parts: the lawyer's advice was deficient, you were prejudiced, and the conviction became final after March 31, 2010. It is proved with evidence, on the criminal court's deadlines, and the order that results has to say why the plea was defective or the immigration judge will not give it effect.
Current as of October 2026. We re-check this page regularly and after any rule change.
This page is about one motion: the one that asks the criminal court to undo a plea because the defense lawyer did not give the immigration advice the Constitution requires. It is the most common qualifying defect for a noncitizen and the one that satisfies Matter of Pickering when it is granted, which is why it sits at the center of the after a plea section. The general rule for which vacaturs count is on the post-conviction relief page. What the advice should have been in the first place is on the Padilla advice page. This page is what has to be proved, with what, where, and by when.
The Padilla claim, in three parts
Deficient performance
In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment requires defense counsel to advise a noncitizen defendant of the immigration consequences of a plea. Silence is deficient. Misadvice is deficient. A lawyer who told you the plea would not affect your status, when the plea was a controlled-substance offense or an aggravated felony, gave advice below the constitutional standard. A lawyer who never asked whether you were a citizen gave none.
Prejudice
Deficient advice alone does not vacate a plea. You have to show it made a difference. In Lee v. United States, 582 U.S. 357 (2017), the Court held that prejudice can be shown where the defendant would have rejected the plea and gone to trial even with little chance of acquittal, because deportation was the determinative issue. The question is not whether you would have won at trial. It is whether, with correct advice, you would have taken this plea at all.
The date
Under Chaidez v. United States, 568 U.S. 342 (2013), Padilla does not apply retroactively to convictions that became final before March 31, 2010.
The Chaidez cutoff
If your conviction became final before March 31, 2010, the Padilla rule is not available to attack it. Other defects may be, and the record should still be reviewed, but the ground described on this page is closed for those pleas. When a conviction "became final" is a question of the criminal court's own rules on appeal, so ask us about your date.
What the evidence has to show
A Padilla motion is won or lost on the record it builds. Three questions have to be answered with documents and sworn statements, not with a paragraph saying the advice was bad.
| Question | What it goes to | What answers it |
|---|---|---|
| What did the lawyer say? | Deficient performance | Your sworn statement of what was said and not said. The lawyer's file, notes and intake form, if they can be obtained. A statement from the lawyer, if one can be had. The plea transcript, which shows what the court said and whether anyone raised your status. A statement from a family member who was present at the conversation. |
| What would you have done? | Prejudice under Lee | Evidence from the time of the plea that deportation mattered to you: how long you had lived here, your family and their status, what you had to lose, what you asked the lawyer, and anything you said or did that shows you would not have accepted removal as the price of the plea. Evidence created for the motion carries less weight than evidence that existed before it. |
| Was an immigration-safer plea realistically available? | Prejudice, and the plan for what comes next | An analysis by an immigration lawyer of what the charge did under the categorical approach, what disposition, count or sentence would have avoided the ground of removal, and whether that outcome was a realistic thing to ask for in the court where the plea was taken. This is the part we prepare. |
The last question, whether an immigration-safer plea was realistically available, is where the immigration lawyer and the criminal lawyer meet. A court asked to vacate a plea wants to know what would have happened instead. A memorandum showing that a plea to a different count, a sentence of 364 days rather than a year, or a disposition that is not a conviction under INA 101(a)(48)(A) would have taken the case outside the ground of removal is the difference between "I would have done something else" and a concrete alternative the court can evaluate. The immigration-safer pleas page lists what those alternatives look like, category by category.
The filings and the deadlines
The motion is filed under the criminal procedure of the court that took the plea. Each has its own filing and its own clock.
| Court | Filing | Deadline | Authority |
|---|---|---|---|
| New York | Motion to vacate the judgment on constitutional grounds, including ineffective assistance | No fixed filing deadline | N.Y. CPL 440.10(1)(h) |
| New Jersey | Petition for post-conviction relief | Generally five years from the judgment; exception for excusable neglect and a reasonable probability of injustice | N.J. Ct. R. 3:22-12(a)(1) |
| Florida | Motion for post-conviction relief | Generally two years after the judgment and sentence become final; listed exceptions | Fla. R. Crim. P. 3.850(b) |
| Federal, in custody | Motion to vacate, set aside or correct the sentence | One year | 28 U.S.C. 2255(f) |
| Federal, no longer in custody | Writ of coram nobis | No fixed statutory period; the writ is for a person who can no longer use 2255 | United States v. Morgan, 346 U.S. 502 (1954) |
"No fixed deadline" in New York is not "no hurry." Evidence of what the lawyer said gets harder to find every year, the lawyer's file may be destroyed, and the immigration case runs on its own clock: 90 days to reopen after a final order, and the vacatur has to exist before that motion is filed. The exceptions in New Jersey and Florida have to be earned with a record. Beyond what the rules say, ask us what that record has to show. The state pages for New York, New Jersey and Florida describe each court's procedure in more detail.
The immigration lawyer's role does not change with the court. In every one of them, the motion has to be reviewed against the ground of removal it is meant to defeat before it is filed, so that the order, if granted, actually solves the immigration problem.
The motion and the order have to say why
Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), a vacatur removes the conviction for immigration purposes only if it was based on a substantive or procedural defect in the underlying proceeding. A vacatur granted solely for immigration hardship or rehabilitation leaves the conviction in place. The immigration judge decides which one yours was by reading the motion, the ground it asserted, and the order the criminal court entered.
That has three practical consequences. The motion has to plead the constitutional defect, in those words, and not ask the court to help you avoid deportation. The order has to recite the ground on which it was granted; an order that says only "motion granted" invites DHS to argue that the court acted out of sympathy. And the transcript of any hearing on the motion should say the same thing, because DHS can obtain it. A vacatur that was granted for the right reason but is documented for no reason at all is an argument, not a result.
A consent vacatur is not a shortcut
Prosecutors sometimes consent to a vacatur to allow a new plea. Consent is welcome, but the order still has to recite the defect. A vacatur entered "on consent" with no finding, followed by a new plea, can leave the immigration judge with an order that recites nothing, and Pickering asks why the court acted, not whether the prosecutor objected.
What happens to the criminal case
Vacating the plea restores the charge. The criminal case goes back to where it stood before the plea was entered, and the prosecution can proceed to trial, offer a different plea or dismiss. People are surprised by this: the motion does not end the case, it reopens it. That is the point. The new plea is negotiated with correct immigration advice, and the immigration analysis of what to ask for is done before the motion is filed, not after it is granted. The plea strategy pages are where that negotiation lives. Anything about how the restored case is likely to be resolved in a particular court is a question for the criminal lawyer who will handle it.
Criminal defense, including post-conviction motions, is handled by Usher Law Group's criminal practice in the courts where our attorneys are admitted. When a plea has to be vacated for the immigration case, the criminal lawyers and the immigration lawyers work from the same file.
The full firm at usherlegal.com →
immigrationtrial.comThe motion to reopen: the 90-day clock after a final order, what the motion has to show, and how a vacatur that came after the order is put in front of the immigration judge or the Board.
Motion to reopen →
Common questions
What do I have to prove to vacate my plea under Padilla?
Two things. First, that your defense lawyer did not advise you of the immigration consequences of the plea, or advised you wrongly, which is deficient performance under Padilla v. Kentucky. Second, prejudice: under Lee v. United States, that you would have rejected the plea and gone to trial even with little chance of winning, because deportation was the determinative issue for you. Both are proved with evidence, not with a statement that you would have decided differently.
My plea was in 2008. Can I still use Padilla?
Generally no. Under Chaidez v. United States, Padilla does not apply retroactively to convictions that became final before March 31, 2010. A plea that became final before that date has to be attacked, if at all, on a ground other than the Padilla rule. Whether another ground exists depends on the record, and it is worth a review.
Is there a deadline?
It depends on the court. In New York a CPL 440.10 motion has no fixed filing deadline. In New Jersey a Rule 3:22 petition is generally due within five years of the judgment, with an exception for excusable neglect and a reasonable probability of injustice. In Florida a Rule 3.850 motion is generally due within two years after the judgment and sentence become final, with listed exceptions. A federal 2255 motion has a one-year limit, and a person no longer in federal custody uses the writ of coram nobis.
If the plea is vacated, is the case over?
No. Vacating the plea restores the charge. The criminal case goes back to where it stood before the plea, and the prosecution can proceed, offer a different plea or dismiss. The point of the motion is to reopen the negotiation with correct immigration advice this time, and the plea that follows has to be planned before the motion is filed.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.