..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
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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