Virginia Supreme Court to Consider Post-Conviction Relief for Aliens

On November 1, 2010, the Virginia Supreme Court will hear oral arguments in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan).  At issue are two ancient writs, the writ of Audita Querela and the writ of Coram Nobis.  These writs allow a trial court to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation. 

The writ of Audita Querela is a common law writ dating back to 1329 which historically permitted a defendant to obtain relief from a judgment because of some defense or discharge arising subsequent to its rendition.  It has been used in criminal cases by a number of federal courts and Virginia trial courts to prevent substantial injustices. 

The writ of Coram Nobis (also called Coram Vobis), unlike Audita Querela, has been codified in Virginia.  It allows a trial court to correct its own record with reference to a vital fact not known when the judgment was rendered and could not have been presented by a motion for a new trial, appeal or other statutory proceeding.  The writ is available where the error of fact is not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment. 

These forms of relief are particularly important in cases where an alien's attorney fails to advise the alien that taking a plea deal for a seemingly small misdemeanor under Virginia law can lead to mandatory detention and deportation under immigration law, even where the alien serves no time in jail.  Earlier this year, the U.S. Supreme Court found that this type of failure to advise constitutes ineffective assistance of counsel. Where other avenues, such as habeus relief are already time-barred, these two writs often present the last possibility of relief from removal.

Supreme Court Says Courts May Review Motions to Reopen

Earlier this year, the U.S. Supreme Court ruled that individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal.

In that case, Agron Kucana moved to reopen his removal proceedings on the basis of new evidence in support of his plea for asylum. An Immigration Judge denied the motion and the Board of Immigration Appeals sustained the ruling.  The Seventh Circuit (unlike many other circuits) concluded that it lacked jurisdiction to review the administrative determination due to a provision added to the Immigration and Nationality Act stating that no court shall have jurisdiction to review any action of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General,” §1252(a)(2)(B)(ii).

The central issue before the Court was whether this provision only applied to decisions made discretionary by statute, or whether (as the Seventh Circuit believed) it also applied to decisions made discretionary by regulation.  The regulations contain a provision stating that “[t]he decision to grant or deny a motion to reopen . . . is within the discretion of the Board.” 8 CFR §1003.2(a) (2009).

The Court stated while the Board of Imigration Appeals has broad discretion to grant or deny a motion to reopen, the courts retain jurisdiction to review that decision.  The Court went on to describe the ability to review as an important procedural safeguard in immigration proceedings.