Access to Courts Post Deportation

440 Relief Is Available After Deportation

On May 16, 2013, the First Department held in People v. Badia that the trial court erred in dismissing a 440 motion based solely on the defendant’s deportation.  IDP and the Post-Deportation Human Rights Project of Boston College filed an amici brief arguing for reversal of the trial court’s summary dismissal of the 440 motion.  Abigail Everett at the Center for Appellate Litigation authored the party brief.

However, in a disappointing decision, the Second Department held in People v. Harrison that the defendant’s involuntary deportation provided a basis for dismissing an appeal of a denial of a 440 motion.  This decision does not conflict with Badia, because the Court in Harrison based its decision on the discretionary nature of such an appeal.  In contrast, if a 440 movant who has been deported establishes a Sixth Amendment violation, Badia applies and the trial court must vacate the conviction.