Immigration Consequences of a Criminal Conviction

A Writ of Coram Nobis is issued by a Court to correct a previous error involving a fundamental right, or to correct a manifest injustice, such as deportation, when no other remedy at law can be pursued.

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Writ of Coram Nobis

Immigration Consequences of a Criminal Conviction

A Writ of Coram Nobis is an order issued by a court to correct a previous error involving a fundamental right or to correct a manifest injustice, in instances where there is no other remedy at law that can be pursued. It is an extraordinary measure that allows an individual to petition a State or Federal District Court for vacating a conviction that was obtained in violation of his or her constitutional rights, and serious collateral consequences of that conviction affect the individual after his or her release from custody. Coram Nobis also known as Coram Vobis, Error Coram Nobis, or Error Coram Vobis comes from the latin “quae coram nobis resident” or “quae coram vobis resident”, meaning “in our presence”, “before us” or “error before us”.

A Writ of Coram Nobis is a civil case that is used to correct defects occurred in federal criminal prosecutions. Traditionally, it was available to direct the court's attention to information that did appear in the trial record and was not admitted into evidence because of fraud, duress, or excusable mistake. A defendant could not use Coram Nobis to re-litigate the same charges if, through his or her own fault, such facts were not introduced as evidence. Modern statutes have expanded the grounds for relief based upon the principles derived from the ancient Writ of Coram Nobis. It is no longer a common law remedy, but statutes provide for the vacation of a conviction and usually order a new trial if there is insufficient evidence to sustain the conviction, newly discovered evidence, erroneous instruction to the jury, or prejudicial comments or conduct by the prosecutor during the trial.

As a New York Immigration lawyer, I have helped many clients file administrative, State, and Federal appeals, including petitions for a Writ of Coram Nobis. In the immigration context, deportation is the most common collateral consequence of a criminal conviction. A successful Coram Nobis petition usually requires obtaining all the records of conviction, and find procedural or substantive errors in the proceedings. As a SuperLawyers-rated criminal immigration attorney, I can review your case and determine whether you should proceed with a Coram Nobis petition or any other post-conviction relief.

Sometimes, non-citizens plead guilty to criminal offenses that create permanent immigration consequences. Immigrants are often unaware that even minor convictions can trigger removal proceedings. When there is no relief from deportation in immigration court because of a criminal conviction, the only remedy is to attempt to vacate or amend the conviction by means of a post-conviction remedy. These remedies attempt to discover constitutional errors in the underlying criminal convictions that could not have been resolved on direct appeal. The most common constitutional error is called ineffective assistance of trial counsel when the defendant’s trial attorney made a mistake or failed to do something he should have done.

The Writ of error Coram Nobis is a remedy intended to achieve justice when “errors of the most fundamental character” have occurred in a criminal proceeding. United States v. Khalaf, 116 F. Supp.2d 210, 213-214 (D.Mass.1999) (quoting United States v. Morgan, 346 U.S. 502, 511-12, 74 S.Ct. 247, 252-53, 98 L.Ed. 248 (1954) quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19, 59 L.Ed. 129 (1914)). It is “limited to ‘those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.’” United States v. Khalaf, 116 F. Supp.2d 210, 213-214 (D.Mass.1999) (quoting United States v. Michaud, 925 F.2d 37, 39 (1st Cir.1991)).

The remedy of error Coram Nobis is available to vacate a conviction after sentence has been served and the defendant is no longer in custody. U.S. v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (19544). In Morgan, the Supreme Court recognized that “although a term has been served, the results of the conviction may persist.” 346 U.S. at 512, 74 S.Ct. 247.

In order to obtain Coram Nobis relief, a petitioner must first establish that a fundamental error occurred at some point during the course of the criminal proceedings. Morgan, 346 U.S. at 512, 74 S.Ct. at 253. A common ground for Coram Nobis is ineffective assistance of counsel, in violation of the Sixth Amendment of the U.S. Constitution. Id. at 511-12; Moody v. United States, 874 F.2d 1575, 1577-78 (11th Cir.1989), cert denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990).

Who is Eligible?

You are eligible for Coram Nobis relief if:

  • You are no longer serving a sentence, or
  • You are no longer on probation for that conviction

AND

You are facing serious collateral consequences, like:

  • Removal (deportation) from the United States;
  • Inability to obtain a professional license or government security clearance;
  • Mandatory registration as a sex offender;
  • Enhancement of a federal sentence because of another state conviction.

AND

A constitutional right has been violated, like:

  • The Fourteenth Amendment Due Process right;
  • The Sixth Amendment Right to Effective Assistance of Counsel.

A petition for a Writ of Coram Nobis can be filed only after have exhausted every other possible remedy at law. A Federal Court will grant Coram Nobis relief only if “no other remedy is available and sound reason exists for failure to seek appropriate relief.” U.S. ex rel. Gomori v. Maroney, 196 F. Supp. 190, 191 (W.D. Pa. 1961).

Factors

In deciding whether to grant a Coram Nobis petition, courts generally use a three-part test.

Under this test, a petitioner  must:

  1. explain his or her failure to seek earlier relief from the conviction;
  2. prove that the conviction resulted from an error of the most fundamental character; and
  3. prove that he or she continues to suffer significant collateral consequences from the conviction.

However, a court has discretion to grant or deny the writ notwithstanding the satisfaction of this three-pronged test. The Writ of Coram Nobis is known more for its denial than its approval. If your Federal Coram Nobis petition is denied, you can still file an appeal to the U.S. Court of Appeals within 30 days.

The Writ of Coram Nobis cannot be used as a substitute for an appeal. In other words, a Coram Nobis petition cannot be used to reargue questions of law that were already decided by the Court.

While it is a common law remedy, many States have enacted their own Coram Nobis statute. In New York, the 440.10 motion provides Coram Nobis relief. In New Jersey, a party would file a post-conviction relief motion under Rule 3.22.

Please contact my office to learn whether you qualify to have your conviction vacated with a Writ of Coram Nobis.