The issuance of a writ of error coram nobis eliminates a criminal conviction for deportation purposes.[181]  The BIA described two types of inherent powers possessed by criminal courts with respect to modifying judgments of conviction, and stated that one is that exercised through granting a writ of error coram nobis: “[W]hen a court acts within its jurisdiction and vacates an original judgment of conviction, its action must be respected” because there is “no authority holding that a conviction exists where there is no finding by a criminal court that a person is guilty of a crime.”[182]

 

Pendency of Post-Conviction Relief.  The pendency of this request for post-conviction relief does not destroy the finality of the conviction.[183]

[181] Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[182] Id. at 600; see also Sawkow v. INS, 314 F.2d 34, 37 (3d Cir. 1963); but see United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (2d Cir. 1959).

[183] See § 5.40, supra.

Ninth Circuit

POST CON RELIEF - FEDERAL -- GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE - PREJUDICE - LOSS OF OPPORTUNITY FOR FAVORABLE EXERCISE OF DISCRETION
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (defense counsel's ineffective assistance of counsel, in failing to notify the defendant when, prior to sentence, the law changed and in fact deportation changed from a mere possibility to a near certainty, was prejudicial where the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of the new legal consequences, or attempted to obtain a sentence of two days less, and lost the opportunity for a favorable exercise of discretion).