August 25, 2009 By Wallin & Klarich

A previous article began the discussion of how the California Supreme Court decided in March 2009 that immigrants facing deportation are no longer provided with the option of two common post conviction challenges. These include the legal procedures of a writ of habeas corpus and a write of error coram nobis, which provide post conviction relief if immigration consequences have been altered.

Withdrawal of Plea
In most states, immigrants have available to them procedures to clean their record of deportable offenses. California however has no such procedure. The court ruled in a unanimous decision, that only defendants who are still in state custody may use writs of habeas corpus. In one recent case, People v. Kim, an immigrant no longer in custody may not exercise a writ of coram nobis, which in the past would allow an immigrant the opportunity of an investigation into ineffective representation that led to a guilty plea.

A writ of coram nobis used to allow the chance for an immigrant to withdraw his or her plea and eliminate the original conviction based on a defect, thus resulting in the immigrant not needing to be deported. However, the court unanimously rejected the use of a writ of error coram nobis as a procedural challenge to deportation. The court acknowledged that other jurisdictions have broadened the scope for coram nobis so that it resembles a post-conviction remedy available to immigrants no longer in custody. However the California Supreme Court felt that any change to the law needs to come from the legislature and not the courts.

What Can You Do?
Changes to our legal system in California occur for many reasons, even when we do not always agree with the outcome. The future of immigrants who have lived in this country for many years and made it their home are now denied the chance to make things right just because they have completed probation or are no longer in custody. The extent of these laws is complex and the potential for alterations to be made in the future are slim.

At Wallin & Klarich, we can help answer your questions if you or someone you know is an immigrant facing criminal charges in California. It is important to protect your rights and be familiar with your options in regards to the law. If you would like to speak to a criminal defense attorney in Southern California with experience in this area, contact us at Wallin & Klarich at 1-888-280-6839 or go to for more information.

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