Writ of Error Coram Nobis Granted to Avoid
IIRAIRA Aggravated Felony Retroactivity

With the specific goal of assisting a lawful permanent resident in avoiding the retroactive impact of  IIRAIRA’s change in the definition of aggravated felony, the judge who originally sentenced the individual in the Southern District of New York granted a writ of error coram nobis to reduce the individual’s sentence from one year and a day to the 10 months actually served.  The court, in US v Ko, 93 Cr. 521 (CSH), 1999 U.S.Dist. LEXIS 19369, granted this “common law shield against injustice” to correct a situation in which an individual who had plead guilty to conspiracy to bribe an IRS official and had actively assisted the government in its investigation had been given a sentence which at the time did not subject him to deportation.  In fact, the judge had fashioned the sentence as a year and a day specifically to make the individual eligible for “good time” that would result in his early release.   (The state’s sentencing statute permitted “good time” only for those sentenced to more than one year.)   AEDPA’s and IIRAIRA’s passage a few months later retroactively made the individual deportable based in part upon the fact that the sentence was for at least one year.

The judge, in US v. Ko, cited case law that defined the coram nobis writ as a common law writ “to correct errors of fact unknown to the court at the time of judgment, without fault of the defendant, which, if known, would probably have prevented the judgment,”  and requiring the criteria of compelling circumstances to achieve justice, sound reasons for failure to seek relief earlier, and continued suffering of legal consequences from the conviction that can be remedied by grant of the writ. 

[Ed. Note:  The text of this case is not available, but can be found at 1999 U.S. Dist. LEXIS 19369.]