A Midsummer Night’s Dream for Immigrants with Old Convictions Based on Bad Advice

 
Last week, in an important ruling, a divided panel  of the 9th Circuit in United States v. Chan, No. 14-44239 (July 9 2015)  (D.W. Nelson, Bybee; dissent by Ikuta) held that post-conviction relief  is available where an immigrant establishes that s/he entered a guilty plea, even decades earlier, on the strength of criminal defense attorney’s affirmative mis-advice about a broadened range of immigration consequences, not just deportation.

There, in 1993, Maureen Chan, a British Citizen, and a legal permanent resident of the United States since 1973, was charged with six counts of perjury under federal law. Chan, supra No. 14-55239 at 4. Thereafter, she entered a plea to two of the counts, and was sentenced to two months in prison. Id.

Almost 20 years later, however, on February 28, 2012, Ms. Chan was per chance stopped by U.S. Customs at LAX as she entered the United States from a trip abroad. Id. Customs, to her great surprise, rather than admitting her, summarily confiscated her passport and permanent resident card, arrested her, and initiated removal proceedings, alleging that the twenty year-old perjury conviction was a crime involving moral turpitude which rendered Ms. Chan inadmissible to the United States (for a description of the difference between “inadmissibility” and “deportability,” see note below).

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Ms. Chan then petitioned the same United States District Court that had handled the perjury case twenty years earlier, asking it to set aside her plea from 1993.  In her petition she alleged that her criminal defense attorney back then had told her, devastatingly incorrectly, that the perjury plea would not trigger any “adverse immigration consequences.” Id at 4. Such mis-advice, in short, according to Ms. Chan, constituted “ineffective assistance of counsel” and entitled her to get out of the 20 year old plea. And the 9th Circuit, without addressing the particular merits of the claim, agreed at least that Ms. Chan had the right to raise the claim, even twenty years after the fact.

Curiously, because of the age of the conviction, Ms. Chan’s attorney styled the action in US District Court as an ancient common law writ, a Petition for Writ of Error: Coram Nobis. Like its more popular cousin habeas corpus, coram nobis, with roots in the British common law, is considered one of the few surviving “great writs,” although coram is rarely used and even more rarely granted.

However, unlike habeas, which is both embedded in the US Const. and has been codified in Title 28 USC § 2252 et. seq. , and contains strict time limitations, coram nobis, uncodified, is potentially available, in theory, no matter how old the conviction is— so long as four narrow strictures are met: 1) no other remedy is available; 2) valid reasons exist for not attacking the conviction earlier; 3) serious and actual adverse consequences flow from the conviction; 4) fundamental legal error exists. Id. at 5-6.

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Chan not only makes clear that Coram is still alive and available in the 9th Circuit for immigration consequences on old cases, but also makes clear that it is available as an avenue of relief from other serious immigration consequences, not just deportation. Id. at 7.

Furthermore, Chan may resonate with special persuasive force in myriad state post-conviction matters of the same immigration ilk, even though Chan, by its own terms concerned only a federal criminal conviction. To a State court judge, Chan demonstrates a growing trend by the federal appellate courts, leaders in American jurisprudential thought, to legally and formally recognize the gravity of immigration consequences in the face of a changing and draconian immigration landscape.

Note:

“inadmissibility” and “deportability” are two related but different consequences.  Both turn on the concept of “admission” to the United States. When someone is “deported” from the United States, they are already physically within its borders, legally or not.

However, when someone is determined “inadmissible,” they are usually, for our purposes, trying to physically enter at one of the borders. And LAX and many other U.S. airports hosting arriving international flights are considered “functional borders.”

So, when an immigrant with legal status, but not U.S. citizenship, physically leaves the United States, on vacation for example, and then tries to reenter at an airport, Customs has the separate opportunity to either admit, or reject and arrest them as “inadmissible,” usually for some crime or alleged criminal activity – even though the immigrant wasn’t deported for it. In short, just because a person isn’t deported for a crime, doesn’t mean that Customs won’t find them “inadmissible” if she leaves and tries to reenter. This is something that  some criminal defense attorneys, unfamiliar with immigration law, sometimes overlook (at my firm, we spend a lot of time counseling our immigrant clients charged with crimes to not leave the country, even for a day—precisely because they might not get back in).