Several NY trial courts have held that a noncitizen must wait to bring a Padilla challenge to an unconstitutional conviction until the federal government has initiated removal proceedings. However, in that scenario, the noncitizen may be deported before the court decides whether the conviction is valid. Also, once removal proceedings commence, the noncitizen may suffer other harms such as prolonged detention, and great difficulty securing counsel for either case due to a lack of income. IDP recently filed an amicus brief addressing this issue in a First Department case, People v. Melo-Cordero. The brief highlights the serious and irreparable harm that may befall a noncitizen if she must wait to challenge an unconstitutional conviction until the federal government brings removal proceedings based on that conviction.
