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Trumpaganda

3/21/2017

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​Veteran journalist Scarborough tweeted, "I had said Friday was the worst day of Donald Trump's presidency. I was wrong. It is today." He was referring, of course, to FBI director James Comey's March 20 confirmation of an investigation into Trump and his team's connections with Russia. It's almost like emails, except it's a thousand times worse.

But folks like Trump continue to paint pretty pictures of themselves, and pretty horrid pictures of everyone else. Merriam-Webster defines propaganda as "the spreading of ideas, information, or rumor for the purpose of helping or injuring an institution, a cause, or a person." (Emphasis added.)

Today, the Trump administration released more propaganda, but it wasn't about the Russians.

Section 9(b) of Executive Order 13768 (the one best described by the hashtag #ICERaids) mandated a weekly report from ICE on the number of declined detainers. Called the "Declined Detainer Outcome Report,"  it lists the jails that allegedly failed to honor detainers, requests by ICE to hold over detainees for up to 48 hours until ICE could come pick them up and begin the deportation process.

That costs taxpayers additional money on what is already an extremely expensive process. It turns jails into deportation pipelines, and exacerbates (many times for very minor violations) the traumatic effect of deportation on children, family, and employers. More simply - it's not a local lawman's job to enforce federal immigration law. ICE continues to complain they aren't getting any help, but Trump is giving them 10,000 more officers. ICE knows there is no way to deliver on a campaign promise to deport millions of undocumented people. So, crowdsource. Make others do your job and protest if they don't. It's like complaining about your bad grades because the smart kid didn't help you.

Trump didn't come up with this on his own. At least as far back as July 2015, the right-wing think tank Center for Immigration Studies urged Congress to mandate local cooperation with ICE detainers, running through the same type of numerology seen in today's DDOR. For those who may not be familiar, CIS began as an "independent" offshoot to FAIR, the Federation for American Immigration Reform. CIS began as a FAIR program, which was started by Dr. John Tanton, a far-right white nationalist who believed Latinos were not as educable, saw immigration as a threat, and whose organizations have now grown to wield considerable influence in the current White House. 

That the CIS report from 2015 and today's DDOR report from ICE are barely distinguishable speaks to the root of the problem: xenophobia rooted in white nationalism is informing the immigration policy of the United States.

Note that the DDOR lists people who were both charged and convicted. This is because ICE wants to count people charged but not convicted as people "released" by uncooperative law enforcement. That the charges may have been dropped (or pleaded down; the DDOR does not clarify) is of no import: under the new administration, they are all top priorities for deportation. (In fact, even being charged isn't necessary; just that ICE believes you committed an act that would be chargeable as an offense, and if not that, just being a threat to public safety, which includes merely overstaying a visa, which is not even a crime.)

The DDOR is an attempt to shame jails into doing ICE's job. Jails that don't perfectly comply are broadly labeled as "uncooperative jurisdictions." And, of course, it lists cherry-picked data clusters of mostly low-level offenders and lists their country of nationality. It even counts as "declined detainers" where the jail did inform ICE of the presence of a foreign national, but not quickly enough. Acts of terror perpetrated by white nationalists, or crime committed by those born in the United States is simply not reported. Coupled with Trump's misguided VOICE office (singling out victims of crime committed by immigrants) and other reports on immigration benefits issuance broken down by country, the administration seeks to continue the process of building a state-sanctioned alternative factual narrative correlating immigrants and crime. See generally, definition of "propaganda," above. 

The ICE raids and the Muslim ban have taken up a lot of response time. But alternative factual narratives do much greater, long-term damage. We're being told this is about transparency, but we're only being shown one pane in the window. If we see it and call it the propaganda it is, we can engage in counter-propaganda, which is done by building bridges, strategic partnerships, and relentlessly discrediting the credibility and motives of the propagandists.

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Victory in NACARA Cancellation Of Removal Case

9/5/2012

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We take a break from DACA to report some good news.

This morning, a hardworking man who'd been in the US, undocumented, since childhood, won special rule cancellation of removal under NACARA.

When his case originally went to trial, the previous lawyers were able to demonstrate all the requirements except one.  Under NACARA, if one has a clean criminal record, they only need to show that their removal would result in extreme hardship.  Moreover, the regulations presume hardship.  However, if there is a criminal conviction involving moral turpitude (a "CIMT") then the burden of proof goes up and the alien has to show exceptional and extremely unusual hardship.

Our client had an old petty larceny conviction from Virginia from the 1990's.  The records for such minor crimes are destroyed after 10 years.  And therein lay the problem: petty larceny is considered a CIMT, but there is an exception if it can be shown that less than 6 months of jail time was ordered.

With the record of conviction gone, there was no proof of the length of the sentence.  That meant there was no proof that the "petty offense" exception applied.  That meant there was a CIMT.  That meant the higher "exceptional and extremely unusual hardship" standad applied.  And our guy could not show that level of hardship.

His application was denied and he was ordered removed.  We filed an appeal with the Board, and obtained a letter from a criminal defense attorney in Virginia which opined that although possible, it is extremely unlikely for any jail sentence to be ordered for a first-time petty larceny conviction.

We argued that it is improper to require an alien to prove something, and also insist that only one form of proof (ie, the conviction record) is acceptable.  If an alien has to prove something (like the petty offense exception's applicability) then the judge should have considered any and all evidence.

The Board of Immigration Appeals agreed, rescinded the removal order, and sent the case back to the judge.  We told the judge that all issues in this case had been resolved except one.  That issue is now before you. If you believe the criminal defense attorney, then our guy has proven that the petty offense exception applies, and therefore standard cancellation of removal under NACARA applies, and hardship is presumed, and the application should be granted.  

The judge agreed, terminating proceedings and granting our guy his green card.  In doing so, he remarked it was the first time he had been given a direction by the Board to consider secondary evidence (like a criminal defense lawyer's opinion) of a conviction.

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It's Broke But We Have No Tool To Fix It

3/29/2011

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Blazing new trails in the law here in Virginia. It's been a year since the Padilla v. Kentucky decision of the US Supreme Court, which found that defense lawyers have an affirmative duty to warn their non-citizen clients about the immigration consequences of their plea. And state courts continue to wrestle with how to incorporate the ruling into their laws dealing with postconviction remedies.

Shouldn't Padilla be enough? Shouldn't the US Supreme Court's words be binding on all courts? Well, yes and no. It is true that no court can, after the decision, state that defense lawyers do not have to advise their clients. What's not clear is whether the rule is retroactive, ie, does it apply to defendants who pled guilty before the Padilla decision, and also whether the state court's postconviction laws provide a way to reopen the conviction.

 In Virginia, there were two cases on appeal to the Virginia Supreme Court – Commonwealth v. Chan and Commonwealth v. Morris. In these two cases, the defense lawyers had failed to provide correct information regarding the immigration consequences of their pleas. Once put in removal proceedings, they filed writs of coram nobis (sometimes called coram vobis) – an ancient common law writ that was meant to correct errors in a proceeding which, if known, would have prevented the judgment from being rendered. For example, suppose a court adjudges a defendant guilty and sentences him, and several years later it is discovered that the defendant was only 16 years old and hence a minor. If that fact was known at the time, it would have prevented rendition of the judgment. The writ of coram nobis exists to correct these types of errors.

On January 13, 2011, the Virginia Supreme Court sharply limited the usability of the writ for cases of misadvice of immigration consequences. The “error” here is the recognition of the fact that the attorney did a competent job. After Padilla, if there was no warning of immigration consequences, it was ineffective assistance of counsel as a matter of law. Would a court render judgment if it knew that the attorney didn't represent his client? Of course not. Therefore, you would think that coram nobis is available to correct the error. The Virginia Supreme Court didn't think so. In its consolidated decision, it ruled that coram nobis is not available for these types of errors.

 There are a host of problems with a decision like this, not the least of which is the fact that it does an end run around Padilla, effectively stating, with regard to a conviction tainted by misadvice on immigration consequences, that “we agree that it's broken, but we have no tool to fix it.” The decision acts as a complete bar to relief. Postconviction remedies in Virginia are usually limited to appeals, motions for reconsideration, or writs of habeus corpus. After that, it becomes very difficult – if not impossible – to challenge a conviction. It is certainly good policy to make convictions “sticky” - they should not be able to be easily overturned. But surely the US Supreme Court ruling that a conviction is unconstitutional should be reason enough to reopen a conviction and fix it. Unfortunately, the Virginia Supreme Court found reliance on Padilla “misplaced,” yet somehow quoted its own ruling to declare that coram nobis is not available. The decision lets a constitutional error remain not only uncorrected, but uncorrectable.

On January 31, 2011 a strange thing happened. A Loudoun County, Virginia district court judge wrote an opinion in Commonwealth v. Cabrera which defied the Virginia Supreme Court and found that coram nobis was available to correct such errors. There was a fascinating discussion on the principle of stare decisis, a legal doctrine that says that courts are bound to follow previous decisions of other courts, especially higher courts. But the doctrine is not absolute. In the Cabrera decision, Judge Worcester found that if a decision is at odds with longstanding precedent and creates confusion, a court is not bound to follow it. Moreover, there is the matter that the US Supreme Court is superior to the Virginia Supreme Court. It calls into question the Supremacy Clause, a part of the US Constitution that says that it is the supreme law of the land. Judges are bound by oath to uphold the constitution, not follow stare decisis. Courts can get it wrong. The right decision should ultimately prevail. And even in the doctrine of stare decisis, if a decision is “wrong,” then it takes time to “stick”- in other words, there must be an element of societal reliance built up to such an extent that to unravel the bad decision would do more harm than good.

Applying all these factors, it is clear that Virginia Supreme Court got it wrong.

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Tri Valley University: Who Are The Victims?

2/12/2011

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On January 18, 2011 the Student and Exchange Visitor Program (SEVP) invalidated all student visas issued on behalf of Tri Valley University in Pleasanton, California. At this point, it looks like the university was a sham, run as a business after defrauding the US government into granting authorization to issue I-20's to enable foreign students to obtain F-1 visas and obtain nonimmigrant student status in the United States. Nearly all of TVU's students hailed from Andhra Pradesh, a province in South India.

Immigration & Customs Enforcement (ICE) has promised to use good judgment, evaluating each student's situation on a case by case basis. In the weeks after January 18, some students were detained, others were placed with GPS monitoring bracelets on their ankles, and still others have been let alone.

There is a lot of speculation on the Internet as to what can or should be done. Unfortunately, as this is an ongoing and developing situation, hard facts are hard to come by.

ICE has indicated on its website that TVU students are encouraged (if not forced) to call in and give their contact information and they would be told what options they had. To date, it seems there are 3 options: 1) go back home (with no penalty, although that's somewhat unclear), 2) reinstate F-1 with another school, or 3) voluntary departure. Some students have been placed in removal proceedings. As a general rule, it is somewhat troubling that ICE asks all the students to report all their information in the absence of clear guidance or assurance that they will not be criminally associated with the fraud.

The concern I have as a criminal immigration lawyer is that the student body of TVU is a vulnerable group that may become swept up in the allegations of fraud. Remember, because immigration benefits are not rights, they can be taken away much more easily. One potential consequence is that once the students leave the US, their names may be submitted to SEVP's counterterrorism and criminal exploitation unit. Result? Not coming back to the US, because it will be impossible to secure any type of visa.

Obviously this is an ongoing investigation. We do not yet know where it will go, or what picture the fraud will finally take. One catch phrase that seems to be repeated in this case is “if it seems too good to be true, it probably is.” My concern is: will the US Attorney's Office and/or ICE hold the students of TVU criminally responsible for getting duped by Dr. Susan Su's allegedly “sham university”? There are several troubling details: the fact that a large number of students (more than half) were registered in SEVIS as living in one apartment in Sunnyvale, California. And according to the forfeiture complaint filed in US District Court for the Northern District of California, TVU employed a kickback referral scheme wherein a referring student would collect 20% of a referee student's tuition payment, thus creating a large pyramid scheme. And there is also the fact that nearly all (95+%) of TVU's students hail from Telugu-speaking Andhra Pradesh, and that Anji Reddy and Rama Krishta Karra - two of the TVU staff now being blamed by Dr. Su – are also Telugu speaking.

The US Attorney's Office will want to know how much students “knew.” Remember – just because the students of TVU (or, for that matter, the Government of India) believe the students to be victims of an elaborate fraud does not mean the US government sees it the same way.

At our office we have been receiving calls requesting attorney presence at “interviews” being requested by ICE. And from reading posts made by my colleagues at the immigration bar, it would seem that the purpose of these ICE interviews, at least in part, is to investigate: to find out how TVU operated, how money was collected, and how much people knew. I believe there is a real risk that the more information the student body gives, the less likely it is that the US Attorney's Office will believe that they are victims.

There are real risks in this very unfortunate situation. If you have been contacted by DHS ICE or other law enforcement, do not agree to meet them without a lawyer present. Ideally you need to have a lawyer familiar with both criminal and immigration law. Remember that ICE is not necessarily interested in helping you remain in the United States.

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Padilla v. Kentucky: A Change is Gonna Come

4/11/2010

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On March 31, 2010 the US Supreme Court handed down a 7-2 decision in the case of Padilla v. Kentucky, 559 U.S. _____ (2010).  And boy, have we been waiting on this one.

Briefly, the case is about a long-term green card holder who was given a piece of very bad advice by his lawyer when pleading guilty to a drug offense.   The Sixth Amendment to the US Constitution guarantees that all criminal defendants will have a competent lawyer for their defense.  So the question is, is it incompetence if a lawyer either gives wrong advice or fails to advise his client about the clear risk of deportation?

The lower courts all said no, reasoning that deportation is not a direct criminal consequence of a guilty plea, so a criminal defense attorney has no duty to advise his client of it.  The defense attorney has to advise his client, for example, that he is giving up his right to appeal, to a trial, to confront witnesses against him, to the presumption of innocence, and many other rights, because these are direct consequences of a guilty plea.  But there are other potential consequences: ineligibility to vote, difficulty in finding a job, or loss of security clearance. 

What about deportation?  The lower courts found that deportation is not a direct consequence, but a collateral (or indirect) consequence of pleading guilty.  And these courts refused to place a duty on the defense attorney to advise about deportation, saying in effect it was the same as other indirect consequences, like ineligibility to vote.

The Supreme Court, thankfully, saw differently. It rejected this whole distinction between direct and collateral.  It is an artificial distinction, it has actually never been used, in this context, and it invites absurd results, allowing a defense attorney to misadvise his client regarding what may be the most important factor in his decision to plead guilty.  Even worse, it allows a defense attorney who does not know immigration law to merely remain silent, and fail to advise his client about what may be the most important factor in his decision to plead guilty.

Although deportation has long been considered a "drastic measure," (see Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948)) this is the first time the Court has found that because deportation is "intimately related to the criminal process" the defense attorney has an affirmative duty to advise about it correctly.  Other immigration consequences (such as ineligibility for naturalization, or eligibility for some form of relief in removal proceedings) should also be advised about, but the Court did not place the duty of knowing all immigration law on the shoulders of defense counsel.  Rather, the duty extends to saying, "Pleading guilty may have some adverse consequences," but if the risk of deportation is truly clear (e.g., the conviction is considered an aggravated felony by the immigration law) then the advice must be, "Pleading guilty will likely result in your deportation from the United States."

In my opinion, this is an important case.  But more importantly, I believe this will become a very important case.  Why?  Because for the first time, the highest court in the land has come down definitively to say that "changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction," and further that the Court found it "most difficult" to divorce the penalty from the conviction in the deportation context.  The law has severely limited judicial review, taken away the old trump card of the JRAD (judicial recommendation against deportation), made deportation virtually automatic for an ever increasing list of offenses, and has exalted form over function in the criminal immigration law.  This is the first time since IIRAIRA in 1996 that the Court has recognized that the current law is so strict that it can easily impinge on an individual's constitutional rights.  Deportation breaks up families and causes untold hardships on innocent people, the same as a criminal conviction.  I am not suggesting that the law treat immigrants and citizens the same in all contexts.  But to demote deportation to a "collateral civil consequence" like ineligibility to vote is just ludicrous.

It's time to start using common sense and stop pretending that a Vietnam veteran like Padilla who's been in the country for 40 years has the same rights as a person who overstayed their visa last month.  The system can't have it both ways: first making this incredibly complex (and frequently nonsensical) criminal immigration law with the power to automatically deport, but at the same time tell defense attorneys that there's no need to advise their clients about any of it. 

The Court's decision, to me, represents the dawning awareness that people's lives should not be easily destroyable. 

If you have a criminal conviction that has made you removable from the United States, contact an attorney to see if this new decision opens up any new options for you.
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When is a Criminal Alien a Criminal?

2/24/2010

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As an immigration and criminal defense lawyer I hear a lot about "criminal aliens." Legally, the term usually refers to people who happen to be aliens (whose status may be legal or illegal) who commit crimes.

But more popularly, it seems a criminal alien is one who is here illegally, whether they've committed a "crime" or not. That is, they are criminals because they're here in violation of the law.

It becomes a slippery slope because once you label any out-of-status alien "criminal" it becomes very easy - at least in the court of public opinion - to justify all sorts of treatment that would make a constitutional scholar wince.  Although it may be oversimplistic, some of the provisions in our law seem to treat an overstay the same as a burglar.  And sometimes I wonder whether some of the more draconian provisions of our law stem from legislators who found it easy to call all status violators "criminal

But then it is claimed that since immigration "crimes" (i.e., violations) are regulatory offenses, the constitutional protections that exist for criminal defendants do not apply.

Should the system be able to have it both ways?
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Why File For Citizenship?

2/16/2010

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Being an immigration lawyer has taught me at least one important lesson: it is far easier to prevent a mess than it is to clean up one.  If you qualify, there is one relatively simple thing you can do that will help prevent many serious problems, and also provide multiple benefits to you.

It's filing for US citizenship.

Popular wisdom says that the only difference between a green card holder and a citizen is the right to vote. It's a lot more than that.

As lawyers, we know the immigration system, its pitfalls and its perils. Citizenship fees are an insurance premium for a fantastic policy that keeps you from having to deal with that system. Once you're a citizen, there are no more worries about time spent outside the US, or filing green card renewals. And the policy comes with other perks, too. You get the right to petition for loved ones – spouses, children, parents, siblings. You get the right to vote, giving you a voice in your community. You qualify for many more forms of government aid. Many government jobs require US citizenship – a major benefit for members of our Washington, DC metropolitan community.  Nowadays, citizenship applications (at least here in the DC area) are being processed in 2 - 3 months.  It's a good time to file.

But there is another benefit that is frequently overlooked, largely because most people are  not aware of this benefit until it's too late. If you find yourself charged with a crime, being a citizen means you cannot be placed into removal (deportation) proceedings. The most common thing I hear in response to this is, “I am not a criminal, I have nothing to hide, and this doesn't apply to me.” Unfortunately, it's not that simple. Many people commit technically criminal acts, which may not even be serious crimes, but for which the immigration consequences are disastrous. Laws are treated differently in immigration. As a federal judge wrote just last week, "While under our law numerous felonies are deemed not...[to cause deportation]...all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.”" Ocegueda-Nunez v. Holder (9th Cir. 2/10/2010).  I have seen the dejected look on many clients' faces over the years, all of whom were good people who found themselves at the wrong place at the wrong time.

It only matters when it matters, but when it does, it's a big deal. You may never be charged with a crime. But everything you have worked for rides on your ability to remain in the United States. Protect your life's work and your family by filing for citizenship. With all the other benefits it comes with, you have very little to lose.

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The Virginia Supreme Court Set Up A Great Fall...

11/30/-0001

1 Comment

 
..for immigrants who got the short end of the stick.  On January 13, 2011 the Virginia Supreme Court reversed two circuit court decisions in which the judges had modified the defendants\' sentences on grounds of their having received bad advice (or no advice) on the immigration consequences of their pleas.  The VSC ruled that the ancient writs of coram nobis (or coram vobis) and audita querela are not available in Virginia to modify sentences, even though the US Supreme Court in Padilla v. Kentucky clearly found constitutional deficiencies in such sentences.

The cases were Commonwealth v. Chan and Commonwealth v. Morris.  You can find the opinion here.

To understand this decision, it\'s important to contextualize a little bit.  In both of these cases, the defendants were charged with grand larceny.  They were green card holders (lawful permanent residents) and pleaded guilty to petit larceny and were given 365 day suspended sentences.  Unfortunately, this qualifies as an aggravated felony under immigration law (INA 101(a)(43)(G)) because it is a crime of theft and the sentence imposed (though suspended) was 1 year or more.  Had the lawyers known this, they would have asked for a 364 day sentence.  That one day makes a lot of difference.  They didn\'t get the chance.

Ever since Congress created this term \"aggravated felony\" the types of crimes that are covered have been expanded.  What\'s more, aggravated felonies are retroactive, so someone who thought (correctly) that their conviction was not an aggravated felony may later find that his conviction has in fact become an aggravated felony.  Many aggravated felonies are what we would expect: murder, rape, sexual abuse of a minor, trafficking, terrorism, etc.  But there are some crimes that are classified as aggravated felonies that don\'t sound like it.  Case in point: petty larceny with a 365 day sentence.  You could get this for stealing a bag of chips from the grocery store.  Sure, it\'s wrong behavior, but does it make sense to call it an \"aggravated felony\" putting it into the same category as a murderer, rapist, sexual deviant, drug trafficker, or terrorist?

As the US Supreme Court observed in Carachuri-Rosendo v. Holder, 560 U.S. ____ (2010) \"Congress, like “Humpty Dumpty,” has the power to give words unorthodox meanings.\" 

“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”

-Lewis Carroll, Through the Looking Glass (1872)

So Congress apparently can call petty larceny (which is not even a felony in Virginia) an aggravated felony.  And this is the result.  Virginia law provides for very limited rights to change or modify a sentence after a certain period of time.  Up until the Chan and Morris decisions, there existed the writs of coram nobis and audita querela to correct errors in judgments to bring them in line with the US Constitution.  The VSC has now taken those writs away, at least for correcting this type of error.  One major problem with the Court\'s decision is that it leaves no option for defendants who want to cure the constitutional deficiencies in their sentences.  It merely notes that these defendants may have had a successful claim if they had filed a habeus petition (see Va. Code 8.01-654 et seq.)  but none of them did so.  So just like that - a defendant who received wrong (or no) advice from their lawyer loses the right to remain in the United States.  For the legal equivalent of stealing a bag
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The Virginia Supreme Court Sets Up A Great Fall...

11/30/-0001

1 Comment

 
...for immigrants who already got the short end of the stick.  On January 13, 2011 the Virginia Supreme Court (VSC) reversed the decisions of two circuit court judges granting modification of sentences in which the defendants did not receive proper advice regarding the immigration consequences of their pleas.  In Commonwealth v. Morris, the defendant was convicted of petit larceny, and received a 12 month sentence with all but 1 month suspended.  In Commonwealth v. Chan, the defendant was convicted of simple assault and battery and received a 12 month suspended sentence.  Under the immigration law, both of these convictions are \"aggravated felonies\".  They mean virtually automatic deportation.  A 364 day sentence, on the other hand, would have given them a way to stay.  So they went back to court to ask for their sentences to be reduced by 1 day by filing writs of coram nobis (also called coram vobis) and audita querela.  The circuit court judges agreed, saying that because they didn\'t receive proper advice from their lawyers, there was a problem with the sentences.  The Commonwealth of Virginia appealed to the VSC, which declared that this was not the type of error that can be corrected by coram nobis, and that under no circumstance could audita querela be used to modify any criminal sentence or conviction in Virginia.

The rules for postconviction relief vary from state to state.  All states have an interest, of course, in convictions being final.   So it\'s usually pretty difficult to get cases reopened.  In Virginia, there are normally appeals that can be taken immediately after a sentence, and there is also the writ of habeus corpus (Va. Code 8.01-654 et seq) with time limits up to 2 years (sometimes a bit longer depending on how long an original appeal took).

The problem is that this doesn\'t fit well for immigrants who have sentences that get them in trouble because of their lawyers\' ineffective assistance.  It has to do with how aggravated felonies work.

Since the creation of the term “aggravated felony” in the Anti-Drug Abuse Act of 1988 , its subsequent revamping in the Immigration Act of 1990 and finally the passage of IIRAIRA in 1996, the law has made deportation virtually certain for an ever-increasing class of aliens, some of whom now face the harshest of penalties for crimes that did not even render them removable when they were convicted.  It really wasn\'t until the Padilla v. Kentucky decision of the US Supreme Court in March 2010 that the law began to appreciate that you can\'t have a system where you mete out criminal and criminal-like punishments without corresponding constitutional safeguards.  So you have a lot of people who have convictions on their records that they perhaps did not even know had turned into aggravated felonies.  Or for years, criminal defense attorneys failed to advise their clients about the immigration consequences of their pleas.  For these unlucky people, the time periods to challenge their convictions has long since passed.  They have no right to appeal, or to file a writ of habeus corpus.

I will admit: \"aggravated felony\" sounds bad.  \"Aggravated felon\" sounds pretty dark and dangerous, too.  In many cases, the crimes that fall into this category are bad and dark and dangerous: murder, rape, sexual abuse of a minor, drug trafficking, terrorism.  No one would seriously question that these crimes are not only felonies, but aggravated in the sense that they are certainly not entry-level offenses like driving without insurance.

But the inclusion of other crimes in the list (which you can find in section 101(a)(43) of the Immigration & Nationality Act) makes you scratch your head.  For example, 101(a)(43)(G) states that any crime of theft where the sentence imposed is 1 year or more (even if the sentence is suspended entirely and the defendant doesn\'t serve a day in jail) is also an aggravated felony.  You could steal a bag of potato chips, be charged with petty larceny, plead guilty, be given a 1 year sentence, suspended entirely so you don\'t spend a minute in jail.  Under this scenario, immigration law will consider you an aggravated felon.

Clearly, stealing potato chips, or anything for that matter, is wrong.  That\'s not the point, however. Does it make sense to place the potato chip thief in the same category as the murderer, rapist, sexual deviant, drug trafficker, or terrorist? 

The Supreme Court recognized this in Carachuri-Rosendo v. Holder 590 U.S. ___  (2010): \"Congress, like \'Humpty Dumpty,\' has the power to give words unorthodox meanings...[citations omitted]..But in this case the Government argues for a result that \"the English language tells us not to expect,\" so we must be \"very wary of the Government\'s position.\"

There must be a legal vehicle for defendants who got the short end of the stick to redress their grievances in court.  The normal procedures for postconviction relief in Virginia, after the Morris decision by the VSC, clearly don\'t provide enough protection.  Most defendants\' convictions are too old.  That\'s why the writs of coram nobis and audita querela were so important: in the wake of Padilla, they provided perhaps the only way to correct a constitutional error.  No more.

\"When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
\"The question is,” said Alice, “whether you can make words mean so many different things.”

-Lewis Carroll, Through the Looking Glass (1872)
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