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Hopes Dashed for Criminal Defendants Facing Deportation in Virginia
In an interesting development resulting from the case of Padilla v. Kentucky, 130 S.Ct. 1473 (2010) [PLN, Aug. 2010, p.11], a General District Court in Loudoun County, Virginia reopened four cases involving defendants who said they would not have pleaded guilty had they known they would face deportation. In Padilla, the U.S. Supreme Court held that it was ineffective assistance of counsel for an attorney not to warn a client that deportation was a collateral consequence of a criminal conviction.
Another judge in Alexandria, Virginia reopened a twelve-year-old criminal case and reduced the sentence of defendant Emmanuel Morris to obviate the threat of deportation. Circuit Judge Donald M. Haddock wrote, “To allow the desire for finality to trump the need for justice in this case would be a travesty.”
The rulings in these cases were closely watched by immigration attorneys who often are hired to prevent deportation after their clients have already pleaded guilty to deportable criminal offenses without having been advised by their defense counsel of the consequences of a guilty plea.
As noted by the Washington Post, “Even immigrants with green cards are subject to deportation if they commit a felony or misdemeanor that results in a year or more of prison time. Crimes of ‘moral turpitude’ involving fraud or theft and crimes involving guns, drugs or domestic abuse are also grounds for deportation.”
According to Robert Robertson, a Fairfax, Virginia attorney who practices immigration law, many immigrants often agree to plead guilty in cases where their attorneys fail to “take [deportation] into account when they negotiated with the prosecution.” Robertson noted, “These are people that don’t deserve to banished from the U.S. for a crime they’ve already served the punishment for.”
In addition to the decision in Padilla, attorneys have sought to apply a venerable court procedure to alter the underlying criminal convictions – the English common law writ of “error coram vobis,” which is intended to correct “any clerical error or error in fact for which a judgment may be reversed or corrected.”
Understandably, Virginia prosecutors strongly oppose the application of the Padilla decision and the writ of error coram vobis to reopen cases which may otherwise not qualify for vacating an existing judgment. According to James P. Fisher, the Chief Deputy Commonwealth Attorney for Loudoun County, “Virginia law should not be construed to permit a ‘do-over,’ just because someone has now figured out that committing a crime may have collateral consequences.... I think it is the Commonwealth’s Attorney’s obligation to hold the line on these types of arguments and rulings. When an extremely ancient legal procedure, which is limited to correcting factual or clerical errors, is used in this fashion, it turns the legal system on its ear.”
According to Alexandria Commonwealth Attorney S. Randolph Sengel, “We have consistently opposed these writs. If commission of a crime lands you in a deportation hearing, deal with it there. Don’t come crying back to a local court years later, asking ... to alter the record ... and pretend you were never found guilty or sentenced to serve time in the first place.”
On January 13, 2011, the Supreme Court of Virginia ruled on the appeals of Emmanuel Morris and another defendant, Wellyn Flores Chan, who claimed their attorneys had failed to inform them they would be subject to deportation if they pleaded guilty in their respective criminal cases. Both had received 12-month sentences, with 11 months of Morris’ sentence suspended and all of Chan’s sentence suspended.
Both Morris and Chan were later subjected to deportation proceedings under the federal Immigration and Nationality Act (INA), as they had been sentenced to at least one year including suspended time. Chan faced deportation because she had been convicted of an “aggravated felony,” though the Virginia Supreme Court observed that the INA’s definition of aggravated felony “includes crimes that are neither ‘aggravated’ nor ‘felonies’ under state criminal law.”
In both Morris and Chan’s cases, the trial courts had entered amended sentencing orders, reducing their original sentences to under 12 months so they would not be subject to deportation pursuant to the INA.
On appeal by the state, the Virginia Supreme Court held that a writ of error coram vobis was inapplicable and could not be used by the trial courts to alter a previous sentence, as the deportation issue did not constitute “an error of fact not apparent on the record.” The Court specifically found that “a claim of ineffective assistance of counsel does not constitute an error of fact for which coram vobis will lie ... because such a claim would not ‘have prevented rendition of the judgment,’” thus precluding application of the Padilla ruling in such cases.
Similarly, a writ of audita querela was inapplicable to Morris and Chan, as that type of writ only applies in civil cases and cannot be used “to seek post-conviction relief from a criminal sentence” in Virginia. Therefore, the amended sentences in both cases were reversed, and Morris and Chan remain subject to deportation proceedings. See: Commonwealth of Virginia v. Morris, 281 Va. 70, 705 S.E.2d 503 (Va. 2011).
While criminal defendants facing deportation in other jurisdictions may have better luck, those in Virginia will have to look elsewhere for relief.
Additional source: Washington Post
Another judge in Alexandria, Virginia reopened a twelve-year-old criminal case and reduced the sentence of defendant Emmanuel Morris to obviate the threat of deportation. Circuit Judge Donald M. Haddock wrote, “To allow the desire for finality to trump the need for justice in this case would be a travesty.”
The rulings in these cases were closely watched by immigration attorneys who often are hired to prevent deportation after their clients have already pleaded guilty to deportable criminal offenses without having been advised by their defense counsel of the consequences of a guilty plea.
As noted by the Washington Post, “Even immigrants with green cards are subject to deportation if they commit a felony or misdemeanor that results in a year or more of prison time. Crimes of ‘moral turpitude’ involving fraud or theft and crimes involving guns, drugs or domestic abuse are also grounds for deportation.”
According to Robert Robertson, a Fairfax, Virginia attorney who practices immigration law, many immigrants often agree to plead guilty in cases where their attorneys fail to “take [deportation] into account when they negotiated with the prosecution.” Robertson noted, “These are people that don’t deserve to banished from the U.S. for a crime they’ve already served the punishment for.”
In addition to the decision in Padilla, attorneys have sought to apply a venerable court procedure to alter the underlying criminal convictions – the English common law writ of “error coram vobis,” which is intended to correct “any clerical error or error in fact for which a judgment may be reversed or corrected.”
Understandably, Virginia prosecutors strongly oppose the application of the Padilla decision and the writ of error coram vobis to reopen cases which may otherwise not qualify for vacating an existing judgment. According to James P. Fisher, the Chief Deputy Commonwealth Attorney for Loudoun County, “Virginia law should not be construed to permit a ‘do-over,’ just because someone has now figured out that committing a crime may have collateral consequences.... I think it is the Commonwealth’s Attorney’s obligation to hold the line on these types of arguments and rulings. When an extremely ancient legal procedure, which is limited to correcting factual or clerical errors, is used in this fashion, it turns the legal system on its ear.”
According to Alexandria Commonwealth Attorney S. Randolph Sengel, “We have consistently opposed these writs. If commission of a crime lands you in a deportation hearing, deal with it there. Don’t come crying back to a local court years later, asking ... to alter the record ... and pretend you were never found guilty or sentenced to serve time in the first place.”
On January 13, 2011, the Supreme Court of Virginia ruled on the appeals of Emmanuel Morris and another defendant, Wellyn Flores Chan, who claimed their attorneys had failed to inform them they would be subject to deportation if they pleaded guilty in their respective criminal cases. Both had received 12-month sentences, with 11 months of Morris’ sentence suspended and all of Chan’s sentence suspended.
Both Morris and Chan were later subjected to deportation proceedings under the federal Immigration and Nationality Act (INA), as they had been sentenced to at least one year including suspended time. Chan faced deportation because she had been convicted of an “aggravated felony,” though the Virginia Supreme Court observed that the INA’s definition of aggravated felony “includes crimes that are neither ‘aggravated’ nor ‘felonies’ under state criminal law.”
In both Morris and Chan’s cases, the trial courts had entered amended sentencing orders, reducing their original sentences to under 12 months so they would not be subject to deportation pursuant to the INA.
On appeal by the state, the Virginia Supreme Court held that a writ of error coram vobis was inapplicable and could not be used by the trial courts to alter a previous sentence, as the deportation issue did not constitute “an error of fact not apparent on the record.” The Court specifically found that “a claim of ineffective assistance of counsel does not constitute an error of fact for which coram vobis will lie ... because such a claim would not ‘have prevented rendition of the judgment,’” thus precluding application of the Padilla ruling in such cases.
Similarly, a writ of audita querela was inapplicable to Morris and Chan, as that type of writ only applies in civil cases and cannot be used “to seek post-conviction relief from a criminal sentence” in Virginia. Therefore, the amended sentences in both cases were reversed, and Morris and Chan remain subject to deportation proceedings. See: Commonwealth of Virginia v. Morris, 281 Va. 70, 705 S.E.2d 503 (Va. 2011).
While criminal defendants facing deportation in other jurisdictions may have better luck, those in Virginia will have to look elsewhere for relief.
Additional source: Washington Post
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Related legal case
Commonwealth of Virginia v. Morris
| Year | 2011 |
|---|---|
| Cite | 281 Va. 70, 705 S.E.2d 503 (Va. 2011) |
| Level | State Supreme Court |
| Injunction Status | N/A |