The government has cited United States v. Tablie[112] in arguing that the district court lacked jurisdiction to issue the writ where the court issued the writ as a mechanism to avoid the immigration consequences of a criminal conviction.[113]  It has also argued that “even if the court had jurisdiction to issue the writ, the respondent did not fulfill the requirements for its issuance.”[114]

 

            These arguments have not prevailed in the Board of Immigration Appeals, where the noncitizen employed a procedural vehicle to attack the conviction over which the criminal court had jurisdiction.  Once it is established that the court vacating the conviction has jurisdiction over the cause of action, the immigration court will not go further to determine whether the defendant made a showing of each element necessary to justify relief, as that is a matter within the competence of the criminal court, rather than the immigration court.

 

The BIA held that the question “whether a court has jurisdiction to change its orders is a proper and necessary issue for consideration in removal proceedings.  Matter of Sirhana, 13 I. & N. Dec. 592, 595 (BIA 1970)(terminating proceedings where a grant of writ of coram nobis vacated alien’s conviction in superior court of California).  The Supreme Court has held that federal courts have jurisdiction over writs of coram nobis.  United States v. Morgan, 346 U.S. 502 (1954).  See also U.S. v. LaPlante, 57 F.3d 252 (2d Cir. 1995)(coram nobis available to redress an adverse consequence resulting from an illegally imposed criminal conviction or sentence); United States v. Castro, 26 F.3d 557 (5th Cir. 1994)(coram nobis granted based upon ineffective assistance of counsel at sentencing where defense counsel had failed to request judicial recommendation against deportation); Matter of Sirhana, supra, at 597.  United States v. Tablie, supra, is inapposite as the issue was whether the All Writs Act, 28 U.S.C. § 1651 (1994), conferred an independent source of jurisdiction in a case where the defendant could not obtain relief from a writ of audita querela.  The record does not indicate that the district court’s order was appealed, and we will not look behind the district court order.  Further, the court order does not mention that it considered the immigration consequences in issuing the writ, and despite counsels’ representations about the court’s reasoning, we will not look beyond the face of the documents presented where, as here, they provide the facts considered by the district court.[115]  

 

            The INS has also argued that if the purpose of the state court action in voiding a criminal conviction was to frustrate federal immigration policy, the state court order does not eliminate the conviction as a basis for deportation.[116]  The immigration court, however, is the wrong forum in which to challenge the validity of a state court order, and the immigration court cannot lawfully go behind the record in an effort to read the mind of the state court judge who issued the order.

 

            Providing the motion attacking the conviction raises grounds of legal invalidity of the conviction, and the criminal court grants the motion, the face of the record is sufficient to require the immigration court to honor the order vacating the conviction, as it no longer exists.

[112] United States v. Tablie, 166 F.3d 505 (2d Cir. 1999) (per curiam).

[113] Matter of Corso, No. A18 079 714 (BIA December 29, 1999), p. 2.

[114] Ibid.

[115] Matter of Corso, supra, at pp. 2-3.

[116] See Innab v. Reno, 204 F.3d 1318, 2000 U.S.App.LEXIS 3102 *3 (11th Cir. 2000).

Other

POST CON RELIEF " PROSECUTORS DUTY
Elizondo-Vasquez v. State, __ S.W.3d ___, 2011 WL 4916610 (Tex. App. Oct. 18, 2011) (commenting on the prosecutions concession on appeal of reversible Padilla error :We note that it is the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005). Admirably, in this circumstance, the State has not only recognized the futility of blindly opposing what appears to be settled law, it has fulfilled its primary statutorily-imposed duty to see that justice is done in this case. In doing so, the State has performed ethically and in the best tradition of the legal profession, a course of action we wholeheartedly commend.)