Post Con Relief-Nunc Pro Tunc Orders

The notion of court orders nunc pro tunc is a very vague equitable doctrine.  Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal court’s conclusion that the order or plea was entered on the backdated date cf. United States v. Esparza.  The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity. 


On the other hand, it is possible for immigration counsel to argue that the immigration courts are bound to honor the final judgment of a state court under the Full Faith and Credit doctrine. 


Because of this question, however, counsel should ask whether they really need an order to be entered nunc pro tunc.  If there is no strong immigration need to backdate the order or plea, perhaps it is better not to ask that the state court act nunc pro tunc.


If it is really necessary to backdate an order or plea, the best argument might be that the law requires that the state and immigration courts place the defendant back in the same position he or she would have occupied if the error had not been made, i.e., with the opportunity to enter the same plea he or she would have had if the ineffective assistance of counsel or the court’s error in giving the mandatory immigration advice had not been made.


The United States Supreme Court recently referred to this obligation in Lafler v. Cooper, 556 U.S. ___, 132 S. Ct.1376 (Mar. 21, 2012).  In that case, the court addressed the question of prejudice where defense counsel rendered ineffective assistance of counsel during plea bargaining, where in rejecting an offer of a 51-to-85-month sentence, defense counsel misadvised the defendant that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist, and he went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence.


The court addressed the general question of the appropriate remedy where “ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence”:


Sixth Amendment remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must “neutralize the taint” of a constitutional violation, id., at 365 . . . .


(Id. at 1388.)  This argument might also be used in the context of a California Penal Code § 1016.5 error, where justice also requires the court to place the defendant in the same position he or she would have occupied absent the error.


The federal courts of appeals, including the Ninth Circuit, have also held in the immigration ineffective assistance of counsel context, that the remedy must place the client in the same position he or she would have occupied, as far as the timing of relief is concerned, that they would have faced if counsel had not made the error.  One case involved the one-year deadline for filing a political asylum claim, and held that even though the court finding of ineffective assistance of counsel was made many years later, when the deadline had long since passed, the court ordered the immigration authorities to accept the political asylum claim as though it had been timely filed within the one-year statute of limitations. 


The BIA has issued nunc pro tunc remedies “in cases going back for more than 50 years ... [to] achieve equitable results serving the interests of the agency and the individual alike.” In re Lei, 22 I. & N. Dec. 113, 132 (BIA 1998). Federal courts also “rel[y] on the doctrine, in order to return aliens to the position in which they would have been, but for a significant error in their immigration proceedings.” Edwards v. I.N.S., 393 F.3d 299, 308–09 (2d Cir.2004). When “agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit” such as “the opportunity to seek a particular form of deportation relief,” courts apply the doctrine in immigration cases so “the error [can] be remedied nunc pro tunc.Id. at 310–311; see also Batanic v. I.N.S., 12 F.3d 662, 667 (7th Cir.1993) (granting a noncitizen asylum nunc pro tunc, when procedural defects in his removal proceeding coupled with an intervening statutory change made him otherwise ineligible for asylum); De Cardenas v. Reno, 278 F.Supp.2d 284, 294 (D.Conn.2003) (remanding a case to the BIA with directions to enter relief from deportation nunc pro tunc, given “administrative oversights and procedural defects [had] deprived [petitioner] of an important opportunity to make her case for section 212(c) relief”).