JOSEPH N. LAPLANTE, District Judge.
Escolastico Suero was indicted in this court on charges of conspiracy to possess with the intent to distribute, and to import, cocaine.
After completing that sentence, Suero sought to vacate his conviction by filing a petition with this court for a writ of error coram nobis. Suero — a lawful permanent resident, but not a naturalized citizen, of the United States — claims that his guilty plea resulted from erroneous advice from his own attorney, and a misrepresentation by the prosecution, as to what Suero calls the "immigration consequences" of the conviction. Specifically, Suero says, he recently learned that his conviction for misprision of felony has made him ineligible to re-enter the United States should he voluntarily leave (which he had been planning to do to visit his family living abroad), even though the prosecutor and defense counsel had told Suero that pleading to misprision would not "cause immigration problems." After a hearing, the court denies Suero's petition, for the reasons explained fully below.
"Coram nobis is an ancient writ that was originally intended to allow courts to correct technical errors in their past judgments."
The United States does not question that Suero has satisfied the first two elements of this test. But the United States maintains that Suero cannot show that his guilty plea, and the ensuing judgment of conviction, resulted from error of any kind, particularly an error that can be used to collaterally attack the conviction through a petition for a writ of error coram nobis.
The United States argues that Suero's claim necessarily relies on the rule of
In his effort to carry his burden of proving his entitlement to coram nobis relief, Suero has come forward with three pieces of evidence: (1) a letter from the prosecutor to Suero's defense attorney offering to resolve the conspiracy charges through a plea to misprision of felony; (2) an affidavit from the defense attorney; and (3) an affidavit from Suero himself. These materials, however, fail to convincingly establish that either the prosecutor or defense counsel told Suero, prior to the entry of his guilty plea to misprision of felony, that the resulting conviction would leave him free to re-enter the United States should he choose to leave the country voluntarily (as he claims to be unable to do now). Instead, this court takes Suero's submissions to show that the prosecutor told defense counsel — accurately — that "misprision is not a deportable offense," and that defense counsel simply relayed that assurance to Suero.
Acknowledging "the concerns [Suero] has with regard to deportation," the prosecutor's letter to defense counsel states that the prosecutor had discussed those concerns with officers of Immigration and Customs Enforcement, and that in those discussions the prosecutor had "been told that misprision is not a deportable offense. Accordingly, if concerns about deportation are [Suero's] paramount concern, then this resolution should allay his fears on this issue" — by offering a plea to misprision of felony. The letter does not mention any other possible collateral consequence of such a plea, and does not use the phrases "immigration consequences" or "immigration concerns."
Defense counsel states in his affidavit that the prosecution "represented in its letter that it tendered this offer [i.e., a plea to misprision of felony] in order to assuage [Suero's] immigration concerns" and that, "[i]n advising [Suero], [counsel] relied on the [prosecution's] representation that conviction of misprision of a felony would not carry immigration consequences" (emphases added). As just noted, however, the letter does not employ the terms "immigration concerns" or "immigration consequences," and the only such "concern" or "consequence" it mentioned was deportation (which the prosecution said would not follow from the plea). Yet defense counsel's affidavit goes on to state that "[a]s a result" of the prosecution's "representation," he "advised [Suero] that his conviction for misprision of felony would not carry immigration consequences." Employing similar terminology, Suero's affidavit states that the prosecution "offered a deal which they said would not cause immigration problems," i.e., a plea to misprision of felony, which defense counsel advised Suero "would not be an immigration problem for [him]."
Read literally, of course, the phrases "immigration problems," "immigration concerns," and "immigration consequences" could conceivably encompass a broad range of difficulties, including the one Suero says he now faces as a result of his plea to misprision of felony, i.e., the inability to re-enter the United States if he elects to leave. But Suero's submissions leave this court with considerable doubt as to whether defense counsel ever actually used one of those phrases in explaining the plea offer to Suero. Again, defense counsel attests that his advice to Suero was based on the prosecution's "representation," but that representation, on its face, was simply that "misprision is not a deportable offense" — not that it was free of any "immigration consequences."
While it is logically possible that, in advising Suero, defense counsel erroneously used the broader phrase "immigration consequences" to relay the prosecution's narrower representation, one would have expected defense counsel to be forthcoming about such an error if it indeed occurred (at least in light of his apparent willingness to submit an affidavit in support of Suero's argument that his plea resulted from counsel's ineffective assistance). Instead, it appears that counsel's affidavit was written to elide the difference between "deportation" and "immigration consequences," just as it appears that Suero's affidavit was written to elide the difference between "deportation" and "immigration problems."
In any event, regardless of whether defense counsel used the phrases "immigration consequences" or "immigration problems" in relaying the prosecution's representation to Suero, there is no evidence — including Suero's own affidavit — that he understood either of those terms to encompass the difficulty he now faces. While Suero states in his affidavit that he "want[s] nothing more than to visit [his] family in the Dominican Republic," he never claims to have communicated this desire to defense counsel at any point before deciding to plead guilty to misprision. Suero's affidavit says only that he "informed [defense counsel] that [Suero's] immigration status was the most important thing" and that he "assumed that because [defense counsel] knew of [Suero's] immigration concerns, [defense counsel] would not advise [Suero] to take a plea that carried any immigration consequences."
Like the statements in defense counsel's affidavit, these statements appear to have been carefully crafted to speak the literal truth while saying nothing of consequence. If Suero told defense counsel that his paramount concern was not being deported, it would be accurate to describe that statement as "my immigration status was the most important thing to me." It is also logically possible that Suero described his concern as his "immigration status," so that, when defense counsel came back with a plea offer he said would not cause "immigration problems," Suero took that to mean that the plea would not affect his ability to leave and re-enter the United States as he pleased. Again, though, if that were the case, one would expect Suero simply to say so in his affidavit.
So, although a generous (or, perhaps more accurately, a naive) reading of the affidavits could support the finding that defense counsel told Suero that pleading guilty to misprision would not carry "immigration consequences," which Suero took to include any effect on his right to foreign travel, the court declines to make that finding in the absence of more specific evidence to that effect. As already noted, Suero bears the burden of proving his entitlement to the extraordinary remedy of coram nobis; in this court's estimation, a pair of affidavits carefully drafted to dance around the crucial issue of what defense counsel actually told Suero about the plea offer do not sustain that burden. Based on the evidence Suero has chosen to present, the court finds that defense counsel simply told Suero, as the prosecution stated in its letter, that "misprision is not a deportable offense," without discussing any broader potential "immigration problems" or "immigration concerns."
Suero argues that even the statement "misprision is not a deportable offense" is false. This argument is based on an unpublished decision by the Board of Immigration Appeals ("BIA"), that misprision of felony is a "crime of moral turpitude,"
Suero further argues that, even if misprision of felony is not a "crime involving moral turpitude" under 8 U.S.C. § 1227(a)(2)(i), it nevertheless subjects him to deportation as an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(iii), specifically, as "an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness," as enumerated in 8 U.S.C. § 1101(a)(43)(S). As Suero acknowledges, however, the BIA has squarely held that a federal conviction for misprision of felony does not fall within the scope of § 1101(a)(43)(S).
Because the BIA has ruled that misprision of a felony is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(S), and Suero has come forward with no authority to the contrary, he has failed to show that the prosecution, or his own attorney, made a "misrepresentation" in saying that his plea to misprision of felony would not make him deportable.
Suero also maintains that, even if his conviction does not subject him to removal from the United States, the prosecution's statement that "misprision is not a deportable offense" was nevertheless false on its face because the conviction in fact disqualifies him from readmission into the country should he choose to leave voluntarily. It is true that an alien who has been convicted of a crime of moral turpitude is ineligible to be admitted to the United States, 8 U.S.C. § 1182(a)(2)(A)(i), and that, again, the BIA has ruled that misprision of felony qualifies as such an offense,
Suero argues that this statement was nevertheless false because "the common and ordinary meaning" of "deportable" necessarily encompasses "exclusion from admission to the United States" as well as "removal." This court disagrees. General purpose dictionaries define "deport" as "to send out of the country,"
Finally — and perhaps most importantly — Suero has not even said that his
Accordingly, Suero has failed to show that his guilty plea resulted from a misrepresentation by either the prosecutor or defense counsel, both of whom simply told Suero, accurately, that the plea would not result in his deportation. Because Suero has therefore failed to show that the resulting conviction was the product of fundamental error, his petition for a writ of error coram nobis (document no. 210) must be DENIED.