It looks like Alexander Timofeev will get a second chance to fight his pending deportation on his home turf.
District 4 Court of Appeals Judge JoAnne Kloppenburg ruled Aug. 1 that Timofeev, whose immigration battle was documented in Isthmus ("Madison Dad Faces Deportation for Smoking Weed as a Teenager," 7/4/2013), could try one more time to get his convictions for marijuana possession overturned in Dane County Circuit Court. These convictions form the basis of the U.S. government's case to deport Timofeev, 35, who immigrated to Madison from the former Soviet Union when he was 14.
Dane County Judge Ellen Berz on Jan. 24 withdrew Timofeev's no contest pleas in these convictions, but the state Department of Justice, at the request of the Dane County District's Attorney Office, appealed her decision.
Timofeev's attorney asked the appeals court to return the matter to circuit court, and Kloppenburg, despite an opposing motion submitted by the DOJ, agreed to do so. Kloppenburg said in her decision that the 2012 Wisconsin State Supreme Court ruling in State v. Sutton allowed her to permit the filing of a new or amended post-conviction motion.
Timofeev, who worked as a chef at the Nakoma Country Club until detained by immigration authorities in December, is now engaged to an American woman and is the father of two American-born children. He entered the country legally with his family in 1992 when his father was recruited to work in a lab at UW-Madison.
Timofeev spoke little English at the time and, like many teenagers, struggled to fit in. He was 18 when first charged with possessing marijuana. He pleaded no contest to that charge and to two subsequent charges; the second offense was charged as a felony.
Though these convictions date to 1996, 1997 and 1998, Timofeev was arrested just this past December by officials with U.S. Immigration & Customs Enforcement, or ICE. He faces permanent banishment to Russia because his petition for citizenship is considered "abandoned" and because, under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, immigrants convicted of most felonies are deportable.
Timofeev spent four months in the Dodge County Detention Center in Juneau before his attorney, Davorin Odrcic, got a chance on Jan. 14 to argue his case in Dane County Court. Odrcic offered affidavits from the defense attorneys who had represented Timofeev in his pot possession cases. None could say with certainty that they had apprised Timofeev of the immigration risks of pleading no contest to a felony.
Odrcic argued that under the 2010 U.S. Supreme Court ruling in Padilla v. Kentucky, old pleas could be withdrawn if defendants were not told that by entering a guilty plea to a felony they could be subject to deportation. Once Berz ruled to withdraw Timofeev's pleas, Timofeev was released from detention.
But the Supreme Court in February ruled in Chaidez v. United States that Padilla could not be applied retroactively. That is why Odrcic asked that the appeals court send the case back to circuit court so he could argue for the withdrawal of Timofeev's old pleas on alternative grounds. Odrcic has until Aug. 29 to file a new or amended post-conviction motion.
Timofeev has not been able to work since being detained by ICE and says it's getting tough.
"Months and months of this waiting is getting to me," he says. "I can rely on people's charity only for so long."
That said, he is happy there's movement on his case. "I'm glad anything is happening."
[Editor's note: The spelling of Davorin Odrcic has been corrected in this story.]