March 17, 2009

By Laura Ernde
Daily Journal Staff Writer

Immigrants facing deportation because of crimes they committed long ago cannot rely on two common post-conviction challenge procedures to save them, the California Supreme Court ruled Monday in two separate cases.

The unanimous rulings mean that thousands of immigrants in California whose criminal convictions have come back to haunt them decades later have no recourse in state court, immigration lawyers said. People v. Kim, 2009 DJDAR 3903; People v. Villa, 2009 DJDAR 3897.

Once a defendant has served a sentence and is no longer on parole or probation, it's generally too late for the state courts to entertain either writs of habeas corpus or writs of error coram nobis, two common law remedies of last resort, the court ruled.

In most states, immigrants have access to these procedures to wipe their records clean of deportable offenses. California and five other states, however, don't have a procedure for challenging old convictions, an immigration lawyer said.

Justice Kathryn Mickle Werdegar said writs of habeas corpus can only be used by defendants who are still in state custody.

That means a Mexican defendant in one of the cases, Avelino Ceja Villa, who long ago finished probation for a 1989 conviction for selling cocaine, won't have recourse to the legal procedure.

Authorities granted Villa residency in 1990 with knowledge of the conviction and then turned around and initiated deportation proceedings when he applied for a renewal of his permanent residency in 2005.

"We appreciate that the consequences for Villa on the facts of this case seem harsh," Werdegar said. "This complaint, however valid, is more appropriately directed to the federal authorities who have chosen belatedly to deport Villa for his past transgression."

Villa's lawyer, Rodney R. Jones of Mendocino, said Villa has already been sent back to Mexico, leaving behind family and friends.

"I think the court took a terribly easy way out of a very difficult situation," Jones said. "I thought it was an inexcusable way to avoid the horrible realities of immigration consequences. The few folks who find themselves wedged in this corner are just plain SOL. It's a tragedy."

In the second case, the court rejected the use of another procedural challenge, the writ of error coram nobis, for Hyung Joon Kim, a South Korean man who has lived in the United States since he was 6.

That type of writ is reserved for very limited circumstances to allow defendants to challenge convictions based on facts that, if known at the time, might have changed the outcome. The procedure did not apply to Kim's case, the court said.

Immigration groups, through friend-of-the-court briefs, urged the court to expand the definition of the coram nobis writ to help defendants who, through no fault of their own, were facing harsh consequences for crimes committed sometimes decades earlier.

Most other states give defendants who are no longer in custody some type of remedy to challenge their convictions.

Werdegar countered such arguments, writing, "That other jurisdictions may have broadened the grounds for coram nobis so that it resembles a generalized post-conviction remedy available to persons no longer in custody may be true, but for several reasons we are unconvinced a similar change is appropriate in this state."

Werdegar wrote that only the Legislature had the power to change the law if there was any problem.

Immigration attorneys said the court's ruling leaves immigrants in an untenable situation because often they don't learn that their crimes are deportable offenses until it's too late.

Meanwhile, the attorneys pointed out, no statute of limitations blocks federal authorities from deporting someone on a decades-old offense.

"We're really below the national standard in this area," said Norton Tooby, an Oakland immigration lawyer who represents Kim. "There's a big hole in our California post-conviction procedure."

Kim, who is still appealing his deportation at the 9th U.S. Circuit Court of Appeals, was convicted as a teenager of petty theft with prior offenses and sentenced to three years in state prison.

Now facing deportation 14 years later, Kim asked for a writ of error coram nobis, claiming he wasn't aware of the immigration consequences of his guilty plea and didn't know that he would face religious persecution if sent back to South Korea. Kim, as a Jehovah's Witness, doesn't believe in serving in the military and could be sent to prison in Korea for resisting the military draft there.

Kim argued that his lawyer at the time should have been able to prevent him from pleading guilty to a deportable offense, but Werdegar responded that it's more important to ensure the finality of a conviction and noted that defendants still have plenty of options for correcting legal errors at an earlier stage.

Deputy Attorney General Amy Haddix said the decision will prevent numerous defendants from coming back into court years later to challenge their convictions.

The rulings also put more pressure on criminal defense attorneys to keep current on the intricacies of immigration law so they can help their clients avoid problems at the outset, Tooby said.

"It's certainly a rule of finality," Haddix said.