Virginia Supreme Court Denies Audita Querela & Coram Nobis Post-Conviction Relief

In January, the Virginia Supreme Court issued its decision 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 were two ancient writs, the writ of audita querela and the writ of coram nobis, which Morris and Chan argued were available 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 Court held that the write of audita querela was simply not an available form of post-conviction relief in Virginia, despite its availability in a number of other jurisdictions.  The Court also held that ineffective assistance of counsel did not constitute and error in fact for the purposes of the writ of coram nobis.

Read the opinion here.
Read Washington Post article here.

Fourth Circuit Ruling on Virginia's 1st Offender Deferred Adjudication (§18.2-251)

Recently, the Fourth Circuit issued an opinion in which the court held that a disposition for possession of marijuana under Virginia Code §18.2-251, a first offender deferred adjudication statute, did not constitute a “conviction” under INA §101(a)(48) where the Defendant did not plead guilty.

The government argued that the judicial finding of facts sufficient to justify a finding of guilt made by the judge under § 18.2-251 was the functional equivalent of a judge finding the alien “guilty” as required under § 1101(a)(48)(A)(i).  The court decided, however, that the plain language of the statute required an actual finding of guilt, not just a finding of facts sufficient to justify a finding of guilt.

This decision may be useful for planning purposes where a defendant must avoid a conviction but is eligible as a first offender.

Read the opinion here.

New Padilla Resources

The ABA's Criminal Justice Section recently announced the establishment of a Padilla Task Force, in response to the decision in Padilla v. Kentucky.  The task force aims to assist defense lawyers in fulfilling their counseling obligations under that decision.  With that goal in mind, the ABA now has a Padilla Resource Page that provides access to a number of helpful vidoe discussions, powerpoints, and guides for practitioners. 

Check out the ABA's Padilla Resource Page here.

Court Orders Government to Provide Counsel to Mentally Incapacitated Aliens in Deportation Proceedings

As a general rule, aliens in deportation proceedings are not provided with legal counsel at taxpayer expense when they cannot afford to hire counsel on their own.

Recently, however, a Federal District Court Judge in California ordered the U.S. government to give a group of mentally incapacitated illegal immigrants legal representation to fight their deportations. In March, a group of attorneys and the ACLU of Southern California argued that the men's diminished mental capacities made them unable to represent their own interests.

The case involved a number of indigent, mentally incapacitated plaintiffs including Jose Franco-Gonzalez, 30, who spent nearly five years in immigration custody after pleading guilty to assault with a deadly weapon because authorities determined he was too mentally incompetent to represent himself in his own deportation hearings.  The U.S. District Court Judge hearing the case ruled that Franco and another plaintiff be released and that additional plaintiffs in the case be given representation for their hearings. 

Review the Complaint here.

2010 Virginia Immigration Review

2010 was a tumultuous year for immigration law across the nation and Virginia was no exception.  The following is a recap of the most interesting immigration happenings in Virginia over the past year.


June -- Virginia Attorney General Ken Cuccinelli announces the expansion of the federal Secure Communities immigration program to every Virginia county. Arlington County tries to opt out but are unable to withdraw.


July -- Cuccinelli files an amicus brief in support of Arizona, which was sued by the Justice Department because of its tough immigration laws.  Cuccinelli announces that Virginia law enforcement can inquire as to the legal status of anyone stopped or arrested.


August -- Carlos Montano allegedly kills a nun in a drunk driving accident. After two previous DUI arrests, he had been detained by immigration officials but was released on bond during his deportation proceedings.  Also in August, Governor McDonnell proposes that Virginia join a federal program that would allow Virginia State Police to enforce certain federal immigration laws.


September -- Following the Montano incident, Governor McDonnell instructs the state Department of Motor Vehicles not to accept federal work authorization cards as proof of legal status from those applying for a driver's license. 


December --  State lawmakers introduce numerous bills for the 2011 General Assembly that would toughen the state's treatment of undocumented residents.   One bill, introduced by Delegate Christopher Peace, R-Henrico, would bar illegal immigrants from attending Virginia's public colleges and universities.  Another, introduced by Delegate Dave Albo, R-Fairfax, would requiring local social service agencies to verify the legal status of those applying for public assistance and give the governor the power to withholding funding from those agencies that don't comply.

Private Legislation

Every year, large numbers of noncitizens with compelling circumstances are removed from the United States because their cases do not fall squarely within the ambit of existing immigration laws.  One potential avenue for addressing the shortcomings of current immigration laws on a case-by-case basis, without comprehensive immigration reform, is through the private legislation process.  Private legislation can be used to provide a much-needed remedy which is lacking under existing law in a particular case.

Successful use of private immigration legislation is rare.  Recently, however, Virginia's own Senator Jim Webb sponsored a private bill for the Japanese widow and son of an American Marine killed in Iraq.  Immigration refused to recongize the marriage despite the fact that it had been recognized by the military.   The first successful private immigration bill since 2006, the bill passed the House on Wednesday and now awaits the President's signature.

Read more about the Private Bill here.

Secure Communities Opt Out Confusion Continues - Arlington Unable to Opt Out

The county of Arlington, Virginia has been unsuccessful in its attempt to remove itself from the Secure Communities program.  The program shares information gathered for criminal background checks with Immigration and Customs Enforcement (ICE).  Arlington attempted to opt out of participating, citing concerns about the program's impact on trust in the police.  Indeed many opponents of the program say it will deter undocumented persons from reaching out to police if they are victims of or witnesses to crime.


ICE previously laid out steps for opting out of the program which began with meetings like the one Arlington recently had with ICE representatives. But at the meeting, County Manager Barbara Donnellan said she was informed the county cannot be removed from Secure Communities because the state of Virginia agreed to participate in the program.  After the meeting, Arlington appears to be giving up on its push to remove itself from the program.


The continuing confusion surround the ability of localities to opt out appears to stem from statements from Secure Communities officials indicating that the program was optional.  However, these statements were later contradicted by Janet Napolitano, the Homeland Security Secretary, and other officials, who stated that participation in the program is mandatory.

Read more about the controversy in the New York Times and about Arlington's efforts here.