The Lawletter Vol 37 No 5
A recent decision from the Fourth Circuit Court of Appeals illustrates both the reach of our immigration laws over even long-term lawful immigrants to this country and the need for criminal defense counsel to familiarize themselves with the impact a criminal conviction may have on one's immigrant status. The case also provides guidance on the correct standard for addressing a petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651. See United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012). The case came to the Fourth Circuit on appeal of the district court's denial of Temitope Akinsade's petition.
Akinsade was a 30-year-old Nigerian citizen who legally came to the United States in July 1988 at the age of seven and became a lawful permanent resident in May 2000. When he was employed as a bank teller in 1999, at the age of 19, Akinsade cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account. He eventually reported the transactions to his supervisor, who then contacted the FBI. He cooperated with the FBI and was neither arrested nor taken into custody at that time. In March 2000, Akinsade was charged by a bank employee with embezzlement in the amount of $16,400, and he subsequently agreed to plead guilty after twice asking his attorney about the immigration consequences of a guilty plea and twice being advised that he could be deported only if he had two felony convictions. The attorney's advice was erroneous. See 8 U.S.C. § 1101(a)(43)(M)(i) (aggravated felony includes offense involving fraud or deceit and loss to victim in excess of $10,000); id. § 1227(a)(2)(A)(iii) (any alien convicted of an aggravated felony after admission is deportable). Finding that the charged behavior was out of character for Akinsade, the court gave him the minimum sentence under the Sentencing Guidelines.
Nine years later, after Akinsade had served his sentence, after he had earned both a bachelor's degree in computer science and a master's degree from the University of Maryland, graduating with a 3.9 GPA, after he had received a fellowship from the National Science Foundation, and after he had entered into a leadership program at General Electric Company and moved to upstate New York, he was arrested by immigration authorities and threatened with deportation based on his embezzlement conviction. He then filed a petition for writ of coram nobis, alleging a violation of his Sixth Amendment right to counsel due to his attorney's misadvice. The district court denied the petition, concluding that although counsel's representation was constitutionally deficient under the first prong of Strickland v. Washington, 466 U.S. 668, 687 (1984), Akinsade did not meet the second prong of establishing prejudice.
Noting that it reviews the denial of a petition for writ of coram nobis for abuse of discretion, the appellate court determined that Akinsade met all four requirements for issuance of the writ: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. Because Akinsade was no longer in custody, he had no other remedy for direct or collateral attack on the judgment of conviction. Since he had not been arrested by immigration authorities for nine years, he had no reason for disbelieving his attorney's advice and for attacking the conviction before he brought the petition. The risk of deportation was an adverse consequence of conviction sufficient to create a case or controversy. Finally, the error was of the most fundamental character.
In addressing the fourth element of the coram nobis inquiry, the Fourth Circuit rejected the district court's finding that Akinsade had not been prejudiced in that the sentencing court's admonishment that he could face deportation as a consequence of the plea was sufficient to correct the consequences of counsel's misrepresentations. The sentencing court had merely warned that a conviction could lead to deportation but did not carefully explain the consequences of a plea in that particular case, i.e., mandatory deportation. Moreover, the Fourth Circuit found that Akinsade had established that he would have gone to trial if he had known that a conviction would lead to mandatory deportation, since there was evidence (including a requirement to pay restitution of $8,000) that the loss to the victims did not exceed $10,000. Having found that Akinsade satisfied the two prongs of Strickland, the court, with one judge dissenting, granted the petition and vacated the conviction.
Of note, the court commented in a footnote that the Second Circuit Court of Appeals' determination in a related case, Akinsade v. Holder, 678 F.3d 138, 143 (2d Cir. 2012), reversing the Board of Immigration Appeals' decision to affirm a deportation order against Akinsade, did not change its conclusion, because the Second Circuit decision did not guarantee that Akinsade would never face deportation on account of his embezzlement conviction. The dissenting judge disagreed and concluded that the Second Circuit decision precluded the Fourth Circuit from finding that criminal counsel gave erroneous advice and that Akinsade was prejudiced by that advice.