In Doe v. Unites States, the Second Circuit (Katzmann, Kearse, and Chin) reversed the district court’s denial of Doe’s petition for a writ of coram nobis. In a partially redacted opinion (we do not even know the district from which this appeal emanated), the panel took the government to task for inconsistent legal positions and recognized the right of a defendant to make plea decisions with knowledge about the immigration consequences. Therefore, granted the Court granted this “extraordinary remedy.”
The facts of Doe’s case are largely redacted. In the unredacted portions of the opinion, the Court explains that Doe pleaded guilty to a conspiracy offense and, as part of his plea agreement, began cooperating with the government. However, while his attorney informed him that his plea should not result in removal and the government assured Doe (at the time, a green card holder) that it would do everything possible to prevent his deportation, the offense to which he pleaded guilty was an aggravated felony that, in fact, mandated that he be deported with the imposition of a lifetime citizenship bar. For a while after Doe was initially placed into removal proceedings, government agents continued to assure him that they would be able to attain citizenship for him even if he did not seek to have his conviction vacated. When it became clear, however, that they were unable to provide the relief they were promising, Doe returned to the courts and filed the instant coram nobis petition.
In the district court, the government initially opposed the petition, arguing that Doe had not shown that his attorney was ineffective, or that he had been prejudiced by the ineffectiveness. Then, after meeting with Doe, the government reversed its position and requested that the petition be granted based on a belief that Doe, in fact, had received ineffective assistance of counsel. Nonetheless, the district court denied the petition orally. Doe appealed, and summary reversal was granted based on the lack of legal reasoning provided by the district court. On remand, the district court again denied the petition, this time in a written opinion. Doe again appealed. On appeal, however, the government again altered its position, arguing that the district court did not abuse its discretion in denying Doe’s coram nobis petition because it was not clear that the immigration consequences were the determinative issue for Doe in deciding to plead guilty.
The Court applied the familiar Strickland standard for ineffective assistance of counsel, requiring objectively ineffective representation and prejudice that stemmed therefrom. Recognizing that Padilla v. Kentucky, 559 U.S. 356 (2010) and Lee v. United States, 137 S. Ct. 1958 (2017)—the Supreme Court cases applying this analysis to the immigration consequences of a plea—had not yet been decided when Doe pleaded guilty, the Court relied on its own precedent in United States v. Couto, 311 F.3d 179 (2d Cir. 2002), which held that misrepresentation about the deportation consequences of a plea was below the objective standard for effective counsel.
Examining the evidence from the time of Doe’s plea, the Court concluded that Doe had been “deeply concerned” about the deportation consequences that might attach to his plea, and he had received multiple reassurances from his counsel and the government that his plea would not lead to his removal. As in Lee, the Court also concluded that Doe’s background indicated deep ties to the United States and a clear desire to remain. Next, the Court rejected the government’s argument that there was not another clear option for Doe to plead guilty, stating that he could have pleaded to the same offense with a lower-dollar loss amount, which would not have led to the offense being classified as an aggravated felony, or to a different, redacted offense. And further, while the Court noted that Doe did have available defenses at trial, it also noted that, as in Lee, where the consequences of conviction after trial were not significantly more severe, it might be rational to pursue “even a small possibility of an acquittal or a successful challenge to the loss figure.”
The Court here seemed motivated by the truly unfair sequence of events that led to the consequences that Doe faced, and the government’s inconsistency, both prior to the litigation—in deterring Doe from seeking a judicial remedy to his attorney’s ineffectiveness—and during the course of the case—repeatedly reversing position as to the propriety of the writ. Defense counsel should, at this point, already be aware that advice as to immigration consequences is often necessary prior to entering a plea on behalf of a non-citizen, but this case serves as a further reminder that, where a criminal defense attorney is “not knowledgeable about immigration law,” relying on government assurances due to ignorance will not suffice.
In the future, we may see more cases similar to Doe as the immigration authorities become more aggressive in seeking to deport individuals who have older convictions. These older convictions were often the result of guilty pleas made without much concern for the immigration consequences, in part because the government did not then seek to enforce the immigration laws with the same ruthlessness that has been applied in recent years. It is sometimes the case that two very similar crimes can lead to very different immigration consequences. When that occurs—as appears to have happened here—convicted defendants will understandably look to challenge the advice that they received that left them in this difficult position.