We are still trying to obtain the release of a client who has been in immigration detention since last July on account of a deferred entry of judgement in a simple possession narcotics case in state court. ICE has maintained that he is subject to mandatory detention throughout his deportation proceedings. We have appealed to the 9th Circuit and our opening brief is due sometime in February 2009.
However, his public defender has been feverishly working to try an vacate this plea agreement before the trial judge. His last effort is to try a Writ of Error, or (Writ of Coram Nobis). The case law holds that if this writ is granted based upon a substantive factual error, this will removed the conviction off the record and he can obtain his release.
"A conviction overturned for substantive, non-immigration reasons may not be used as the basis for removability. See Nath v. Gonzales, 467 F.3d 1185, 1187-89 (9th Cir. 2006) (“[A] conviction vacated because of a procedural or substantive defect is not considered a conviction for immigration purposes and cannot serve as the basis for removability.” (internal quotation marks and citation omitted)); see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107-08 (9th Cir. 2006) (remanding for consideration of whether conviction was vacated on the merits or because of immigration consequences)"
Furthermore, "the government bears the burden of proving whether a state court reversed or vacated a prior conviction for reasons other than the merits. Nath, 467 F.3d at 1189; Cardoso-Tlaseca, 460 F.3d at 1107 n.3 (“[F]or the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove with clear, unequivocal and convincing evidence that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e. to avoid adverse immigration consequences.” (internal quotation marks and citation omitted)).