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Immigration consequences of criminal convictions
A Writ of Coram Nobis is an extraordinary measure that allows an individual convicted of a crime to petition a Federal District Court for correcting a legal of factual error. A petition for a writ of Coram Nobis is generally filed with a Federal District Court, while a petition for Writ of Error Coram Vobis can be filed with a Federal Circuit Court.
Both Coram Nobis and Coram Vobis differ from a Writ of Habeas Corpus because they do not require a petitioner to be in custody at the time of filing.
Defendants that do not meet the custody requirement of 28 U.S.C. § 2255 or § 2241, may still be able to obtain relief under the All-Writs Section pursuant to 28 U.S.C. §1651, by petitioning for a writ of Coram Nobis. However, a Writ of Coram Nobis is not a substitute for an appeal.
Ineffective assistance of counsel is one of the fundamental errors that can be corrected through a Writ of Coram Nobis.
In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court held that criminal defense attorneys have an affirmative duty to advise their clients of the collateral immigration consequences resulting from a guilty plea. The case has generated a flood of litigation in both State and Federal Court as thousands of non-citizen have attempted to vacated their convictions for not having received such advice before accepting a guilty plea to a deportable offense.
However, the Supreme Court later opined that Padilla set a new rule, and therefore only defendants that pled guilty after March 2010 are able to invoke it. Nonetheless, non-citizens that pled guilty before Padilla was decided are still able to assert a claim for ineffective assistance of counsel under the law that was in effect before Padilla.
In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Court established that claims of ineffective assistance of counsel in the plea bargaining context are governed by the deficiency and prejudice test of Strickland v. Washington, 466 U.S. 668, 688 & 692 (1984). In Missouri v. Frye, 132 S.Ct. 1399 (2012), Justice Kennedy observed that the Sixth Amendment right to the effective assistance of counsel applies to all critical stages of criminal proceedings.
While Padilla is concerned only with omissions of counsel to provide immigration advice, a non-citizen can claim ineffective assistance of counsel if he or she had received affirmative misadvice or misrepresentation about collateral immigration consequences.
In holding that Padilla set forth a new rule, and thus should not be applied retroactively, the Supreme Court in Chaidez took pains to distinguish affirmative misrepresentations from omissions. Chaidez at 1111-1113. At the time of Padilla, there already existed an established body of case law, which held that an attorney’s affirmative misrepresentations regarding the immigration consequences of a plea to a client constituted ineffective assistance of counsel. However, the Supreme Court distinguished Padilla from that line of cases, by holding that Padilla only addressed situations where an attorney failed to give any advice to a client about deportation being a consequence of a plea.
In fact, the body of case law holding that an attorney who misleads his client about the immigration consequences of a conviction acts in an objectively unreasonable fashion under Strickland is well-established and robust. See “Downs-Morgan v. United States, 765 F.2d 1534, 1540-41 (11th Cir. 1985) (holding that an affirmative misrepresentation regarding the immigration consequences of a plea, coupled with a likelihood that petitioner would be imprisoned and/or executed followed deportation, constituted ineffective assistance of counsel); United States v. Briscoe, 432 F.2d 1351, 1353-54 (D.C. Cir. 1970) (“Under appropriate circumstances the fact that a defendant has been misled as to [the] consequence of deportability may render his guilty plea subject to attack. … Calculations of the likelihood of deportation may thus rightly be included in the judgment as to whether an accused should plead guilty, and any actions by Government counsel that create a misapprehension as to that likelihood may undercut the voluntariness of the plea”); see also Sandoval v. I.N.S., 240 F.3d 577, 578-79 (7th Cir. 2001) (reasonable reliance on counsel’s erroneous advice regarding deportation can render a guilty plea involuntary); United States v. Russell, 686 F.2d 35, 40-41 (D.C. Cir. 1982) (noting that the provision of misleading information by the prosecution concerning the immigration consequences of a guilty plea may render the plea invalid); United States v. Khalaf, 116 F.Supp.2d 210, 215 (D. Mass. 1999) (“Counsel’s affirmative misrepresentation regarding the deportation consequences of a guilty plea is unreasonable under prevailing professional norms”); United States v. Corona-Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan. 1999) (“Although an attorney’s failure to inform his or her client about the possibility of being deported may not amount to ineffective assistance of counsel, providing incorrect information about being deported following specific inquiry may render the defendant’s plea involuntary”); United States v. Mora-Gomez, 875 F.Supp. 1208, 1213 (E.D.Va.1995) (“[C]ounsel’s affirmative misrepresentation regarding the deportation consequences of a guilty plea may, but does not automatically, constitute ineffective assistance”); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich. 1987) (“[I]f counsel made affirmative misrepresentations in response to specific inquiry from Defendant, Defendant may have a claim for ineffective assistance of counsel”); In re Resendiz, 25 Cal.4th 230, 240 (2001) (“[A]ffirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel”); People v. Soriano, 194 Cal.App.3d 1470, 1481(1987) (holding, in a case where securing a sentence of less than one year would have avoided deportation, that a “formulaic warning” about immigration consequences constitutes ineffective assistance of counsel); People v. Correa, 108 Ill.2d 541, 552-53 (1985) (concluding that defendant’s guilty pleas “were not intelligently and knowingly made and therefore were not voluntary” when counsel provided erroneous and misleading advice in response to specific inquiries concerning deportation consequences); Williams v. State, 641 N.E.2d 44, 49 (Ind. App. 1994) (holding that the failure “to advise a noncitizen defendant of the deportation consequences of a guilty plea” constitutes ineffective assistance of counsel); In re Yim, 139 Wash.2d 581, 588 (1999) (“[A]n affirmative misrepresentation to a defendant regarding the possibility of deportation might constitute a ‘manifest injustice,’ and, thus, provide a basis for setting aside a guilty plea”).” See United States v. Couto, 311 F.3d 179, 187-88 (2nd Cir. 2002) and United States v. Abramian, (Dist. C.D. Cal. 2014) for a roundup of these cases.
The requirements to obtain a Writ of Coram Nobis are that:
- There are circumstances compelling such action to achieve justice;
- Sound reasons exists for failure to seek earlier relief, and
- The petitioner continues to suffer collateral consequences of his convictions that can be remedied by granting the Writ.
The most common collateral consequence of a criminal conviction for a non-citizen is deportation from the United States.
Another collateral consequence could be the permanent inability to obtain immigration benefits. For example, a non-citizen that admits to making a false claim of U.S. citizenship during a guilty plea colloquy is permanently barred from obtaining immigration benefits, even though the underlying offense resulted in a fine and/or probation.
Contact an experience criminal immigration attorney if you need to vacate and/or correct a criminal conviction that impact on your immigration status.