Criminal Defense Lawyers

440.10 Vacatur Motion

The Clock Is Ticking—and ICE Loves Old Skeletons

Your green card survived Y2K, flip phones, and three presidents, yet a dusty Notice to Appear just detonated in your mailbox. You feel blind-sided. Reality check: the government’s removal machine runs on relic convictions because they’re low-hanging fruit. The question isn’t “Why me?” It’s “What next?”

Two Surgical Tools, One Mission: Keep You Home

Tool #1—212(c) Waiver. If you pled guilty before April 24, 1996, you can still ask an Immigration Judge to forgive a removable offense under INA §212(c). The waiver weighs equities—length of residence, family ties, rehab—and balances them against your conviction.

Tool #2—440.10 Vacatur Motion. New York Criminal Procedure Law §440.10 lets you attack the conviction itself: constitutional defects, ineffective counsel, new evidence, collateral consequences. Win here and the removal ground evaporates.

Why Run Them in Tandem?

• Redundancy = Resilience. If the vacatur stalls, the waiver keeps you in the game.
• Optics. A pending vacatur shows proactive rehabilitation—gold for equities.
• Leverage. Prosecutors negotiate when they sense a two-front war.

Case Study—St. Cyr’s Ghost Still Saves Clients

Mario, a Bronx LPR with a 1994 drug plea, faced deportation in 2024. We filed a 212(c) waiver stacked with 600 pages of rehab proof: tax returns, homeowner records, a daughter’s Ivy League scholarship letter. Simultaneously, we attacked the 1994 plea under 440.10—no Spanish interpreter, no Padilla warning. The judge granted the waiver “in light of extraordinary equities,” and the DA offered a non-deportable misdemeanor on remand. Mario walked out with his green card—ICE never got the second swing.

Spot Your Blind Spots Before DHS Does

1. Equities That Ring Hollow. Letters from relatives who never visit? Trash them. Judges sniff perfunctory praise.

2. Old Criminal Counsel Still on Your Team? They may resist affidavits admitting error. Get independent ethics advice—then subpoena if needed.

3. Time Trap. Vacatur motions in NY can take 12–18 months. File early so the immigration clock doesn’t beat you.

4. Records Mirage. Certified transcripts from the 1990s vanish. Plan for reconstruction affidavits; don’t assume the clerk’s office kept microfiche.

Design Your Action Plan—Step by Step

Step 1 — Forensic Intake

Pull FBI rap sheets, NYS rap sheets, and court files. Confirm exact plea dates and statutes. One digit off can torpedo eligibility.

Step 2 — Equities Dossier

Think like a venture capitalist underwriting your life. Tax returns, mortgage statements, military service records, rehab certificates, community awards—all curated into a single PDF with a punchy cover letter.

Step 3 — Statutory Crosswalk

Map the conviction to today’s INA grounds. Some offenses once deportable under §212(a)(23) vanished post-1990. Use the mismatch to your advantage.

Step 4 — Draft the 440.10 Motion Like a Murder Board

Lay out every constitutional defect: ineffective assistance, interpreter failure, coerced plea. Attach expert affidavits on immigration fallout to trigger Padilla logic.

Step 5 — Sequence the Filings

File the 440.10 first to create momentum, then lodge the 212(c) with EOIR. Serve DHS and DA the same day—signal coordination and confidence.

Step 6 — Negotiate Relentlessly

Offer DA a disorderly conduct conversion. Offer DHS an admin closure in exchange for waiver withdrawal. Always trade paper for paper.

Metrics That Matter—Stop Guessing, Start Measuring

• 90-Day Rule. If no DA response to 440.10 in 90 days, move to calendar the motion—force action.
• Equity Ratio. Pages of positive exhibits ÷ pages of rap sheet should exceed 5.
• Recidivism Horizon. Minimum 10 crime-free years before filing. Anything less invites DHS outrage.

Hard Truths—Where Clients Self-Sabotage

Procrastination. Waiting until the merits hearing to gather records is malpractice. Judges hate fire-drills.

Selective Disclosure. “Minor” arrests still count. Hiding them torpedoes credibility faster than the arrests themselves.

DIY Mania. Boilerplate motions downloaded from Reddit get shredded in minutes. Hire specialists or brace for exile.

Cost-Benefit Snapshot—Is the Juice Worth the Squeeze?

• Average Legal Fees: $18-25k for combined strategy—cheaper than one year of lost U.S. income.
• Processing Time: 9-24 months; stop-gap work permits often available.
• Success Rates: 212(c) grants hover at 55-60% when fully documented; 440.10 success spikes to 70% with interpreter or Padilla defects.

Pushing You Beyond Comfort—My Brutal Questions

Why haven’t you ordered certified disposition slips yet? Who in your family will draft a sworn hardship affidavit by Friday? Which employer will testify that losing you guts a U.S. job site? If names don’t spring to mind in ten seconds, you’re stalling.

Leverage Points Most Lawyers Miss

DA Parallel Relief. Convince prosecutors that vacating + re-pleading saves them trial resources. They get a win-win headline; you get non-deportable relief.

Post-Conviction Certificates. A New York Certificate of Relief from Disabilities can shrink perceived risk and sweeten waiver equities.

FOIA Phasing. Stagger FOIA requests to ICE, EOIR, and legacy INS. The response gaps often expose record errors you can weaponize.

Real-World Anecdote—Waiver Granted on Christmas Eve

On December 24, 2023, Judge K in Varick Street granted a 212(c) waiver for a Vietnam-born LPR with a 1995 robbery plea. Our final exhibit? A video of his autistic son saying, “Dad, don’t go.” The government attorney withdrew her opposition on the record, citing “overwhelming humanitarian equities.” Moments matter—manufacture them.

Compliance Minefields—Avoid the Easy Kill Shots

Inconsistent Addresses. USCIS, DMV, tax returns—if your paper trail looks nomadic, adjudicators assume flight risk.

Social Media Leakage. A single Facebook photo at Cancun can undercut hardship claims. Audit every platform.

Tax Skeletons. Owe the IRS? Pay or set a staged plan before filing. Unpaid taxes scream moral turpitude.

Future-Proof Your Status—Think Past the Courtroom

Secure a new N-400 naturalization roadmap the moment your case resolves. Lock in LifeLock monitoring to flag identity theft tied to old arrest data. Draft a family I-601A waiver contingency if kids age out. Strategy never sleeps.

Immediate Calls to Action—Zero Delay

• Book a strategy session with Spodek Law Group within 48 hours.
• Request certified plea transcripts by day 5.
• Collect five hardship affidavits by day 14.
• FOIA every agency touching your A-file by day 21.
• File 440.10 motion before day 45.
• Prepare 212(c) packet for service by day 60.

Ignoring any step is a dangerous choice.

Parting Shot—Who Wins When You Hesitate?

ICE quotas still exist. Prosecutors crave easy wins. Delay hands them leverage. Act now, or accept exile on their terms. The choice is binary.

By Todd Spodek, Managing Partner, Spodek Law Group. Updated May 11, 2025. Legal information only—consult counsel for advice specific to your facts.

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