…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)