United States District Court, S.D. New York
August 9, 2005.
YONG WONG PARK, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, U.S.D.J.:
This case presents the question of what duty criminal defense
counsel owes to a non-citizen client. Yong Wong Park, a Korean
national, petitions for a writ of error coram nobis to vacate his
conviction for trafficking in counterfeit goods. Mr. Park alleges
that his guilty plea was unconstitutional because it was the
result of ineffective assistance of counsel. The petitioner
claims he would not have pled guilty if he had known that it
would result in his deportation. For the reasons that follow, I
recommend that Mr. Park's petition be denied.
In February 2000, Mr. Park pled guilty to trafficking in
counterfeit goods. (Affidavit of Yong Wong Park, dated January 6,
2005 ("Pet. Aff."), ¶ 2). Based on all relevant sentencing
factors, the petitioner's plea resulted in a sentencing range of
21 to 27 months. (Letter of Marcia S. Cohen dated April 27, 2005
("Cohen Letter") at 3). The Honorable Jed Rakoff, U.S.D.J.
accepted Mr. Park's plea and sentenced him to 21 months of imprisonment, followed by two years of supervised release. (Plea
Allocution, dated February 18, 2000 at 14, attached as Exh. 1 to
Cohen Letter; Sentencing Transcript dated July 5, 2000 ("Sent.
Tr.") at 14-15, attached as Exh. 3 to Cohen Letter). Judge Rakoff
also imposed as a special condition of supervised release that
Mr. Park cooperate with the Immigration and Naturalization
Service (the "INS") in any proceedings regarding his status in
the United States. (Sent. Tr. at 16).
In July 2001, Mr. Park filed a pro se writ pursuant to
28 U.S.C. § 2255, alleging that his sentence should be set aside due
to improper venue, jurisdictional defects, and ineffective
assistance of counsel because his attorney failed to raise these
defenses. (Cohen Letter at 6). Judge Rakoff denied that
application. Since that time, Mr. Park has completed serving his
sentence. (Petitioner's Memorandum of Law ("Pet. Memo."), at 3).
On March 27, 2002, the INS commenced deportation proceedings
against Mr. Park in New Jersey, alleging that he had committed a
crime involving moral turpitude. (Pet. Memo. at 4). An alien
found to have committed such a crime is deportable, but may also
receive discretionary relief from deportation.
8 U.S.C. §§ 1227(a)(2)(A)(i), 1229b. On July 15, 2004, however, the INS
changed its asserted basis for Mr. Park's deportation by alleging
that he had committed an aggravated felony. (Pet. Memo. at 4).
Under current immigration law, aggravated felons cannot receive discretionary relief from deportation. 8 U.S.C. § 1229b(a)(3).
Due to the nature of Mr. Park's crime and the length of his
sentence, he was found to have committed an aggravated felony,
and a final order of removal was entered.*fn1 (Pet. Memo. at
Mr. Park now seeks to overturn the conviction on which his
deportation is based through an application for a writ of error
coram nobis. Mr. Park's affidavit alleges that his attorneys,
Daniel Becker and Joseph Ferriero, did not advise him that he
could be subject to removal as a consequence of his conviction on
a plea of guilty. (Pet. Aff., ¶ 2). Rather, they informed him
that he would not be deported because he had paid his taxes for
five years, had a "green card" (i.e., was a lawful permanent
resident), and had family members who were United States
citizens. (Pet. Aff., ¶ 2). The petitioner claims he would not
have pled guilty if he had known it would result in his removal
because he has lived in this country for over 20 years, his wife
and children have no roots in Korea, and his family members would
be unable to support themselves without his income. (Pet. Aff., ¶
3). I held an evidentiary hearing on July 7, 2005 to evaluate of
Mr. Park's factual allegations.
At this hearing, Mr. Park testified that he first asked his criminal defense counsel, Mr. Becker, about the deportation
consequences of his plea one week before it was entered. (Tr. at
97).*fn2 In contrast to the sworn statements in his
affidavit, the petitioner now claims that Mr. Becker did not
provide him with any advice on the topic and instead told him to
speak with an immigration lawyer or with Mr. Ferriero, who was
Mr. Park's counsel in a related civil matter and a member of the
same law firm. (Tr. at 102-03). Mr. Park went on to testify that,
shortly before his plea, he spoke with Mr. Ferriero, who assured
him there would be no immigration consequences. (Tr. at 99-100).
The respondent, on the other hand, produced evidence that Mr.
Park raised no concerns about deportation until several months
after he pled guilty. Neither Mr. Becker nor Mr. Ferriero have
any recollection of Mr. Park inquiring about removal prior to his
plea. (Tr. at 7, 41). When asked what their responses would have
been had Mr. Park raised the question, both attorneys testified
that they would not have provided him with an answer since they
were not familiar with immigration law. (Tr. at 21, 54).
Several memoranda exchanged between Mr. Park's lawyers in
September 2000 seven months after the plea were also offered
into evidence. In the first such communication, dated September
11, 2000, Mr. Ferriero alerted Mr. Becker's successor, Lori
Grifa, that the petitioner was not a citizen of the United States. (Pet.
Exh. A). Mr. Ferriero recognized that this could have deportation
consequences. (Pet. Exh. A). Ms. Grifa responded to Mr.
Ferriero's concerns on September 18, 2000. (Pet. Exh. B). She
wrote that she did not think that Mr. Park fell within the
criteria for deportation and, in the event that the INS did seek
to deport him, he would be eligible to seek cancellation of
removal. (Pet. Exh. B). Ms. Grifa further explained her research
in an e-mail dated September 26, 2000. (Resp. Exh. 3). In her
opinion, Mr. Park had not been convicted of an aggravated felony
but could be found to have committed a crime involving moral
turpitude. (Resp. Exh. 3). She wrote, however, that Mr. Park was
unlikely to face removal because the crime was committed
substantially after he had been admitted to the United States and
because his family circumstances would qualify as extreme
hardship, meriting discretionary relief. (Resp. Exh. 3). No
evidence was presented to show what precipitated this exchange or
when, if ever, Mr. Park was informed of his counsel's legal
opinions. Mr. Park alleges that these intra-office communications
were fabricated or post-dated to cover up his counsel's previous
errors. (Tr. at 125).
A. Coram Nobis
Where extraordinary circumstances are present, a district court
may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Nicks v. United States,
955 F.2d 161, 167 (2d Cir. 1992). However, the proceedings
leading to the conviction are presumed to be correct, and the
burden rests on the petitioner to show otherwise. See United
States v. Morgan, 346 U.S. 502, 512 (1954); Nicks,
955 F.2d at 167.
To obtain coram nobis relief, a petitioner must demonstrate:
(1) compelling circumstances requiring such a remedy in order to
achieve justice; (2) sound reasons for the failure to seek
appropriate relief earlier; and (3) continuing legal consequences
from the conviction that may be remedied by granting the writ.
See Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998);
Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996).
Where a conviction is based on a plea obtained in violation of
the Constitution, coram nobis relief may be warranted. See
Foont, 93 F.3d at 79 ("An error of constitutional dimension at
the time of a plea or sentence renders a conviction
voidable[.]"). For Mr. Park to receive this remedy, however, he
must prove that his plea was in fact the result of ineffective
assistance of counsel, that his delay in seeking the writ was
reasonable, and that deportation is a legal consequence that
merits this extraordinary remedy. Since Mr. Park does not meet
his burden of proving ineffective assistance, I need not address
the other issues.
B. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court adopted a two-part standard for evaluating claims of
ineffective assistance of counsel. First, "the defendant must
show that counsel's representation fell below an objective
standard of reasonableness." Id. at 688. Then, he must
demonstrate "that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at
694. This test is also used to evaluate guilty pleas based on
ineffective assistance of counsel. See Hill v. Lockhart,
474 U.S. 52, 58 (1985); United States v. Couto, 311 F.3d 179, 187
(2d Cir. 2002).
For many decades, the Second Circuit has viewed deportation as
a collateral consequence of a criminal conviction. See United
States v. Parrino, 212 F.2d 919, 921 (2d Cir. 1954). As such, a
defense attorney's failure to inform his client of the
deportation consequences of a plea has not been considered
grounds for finding ineffective assistance of counsel. See
United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975)
In recent years, however, several commentators have argued that
counsel's failure to warn an alien client of the deportation
consequences of a plea is objectively unreasonable. See, e.g.,
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance
of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.
Rev. 697 (2002); Guy Cohen, Note, Weakness of the Collateral
Consequences Doctrine: Counsel's Duty to Inform Aliens of the
Deportation Consequences of Guilty Pleas, 16 Fordham Int'l L.J. 1094 (1993). Many of these observers have been motivated by
recent changes in the immigration laws that increase the number
of crimes that qualify for deportation while severely limiting
the availability of discretionary relief. See, e.g., Rob A.
Justman, Note, The Effects of AEDPA and IIRIRA on Ineffective
Assistance of Counsel Claims for Failure to Advise Alien
Defendants of Deportation Consequences of Pleading Guilty to an
"Aggravated Felony", 2004 Utah L. Rev. 701 (2004); Lea McDermid,
Comment, Deportation is Different: Noncitizens and Ineffective
Assistance of Counsel, 89 Cal. L. Rev. 741 (2001). As a result,
deportation has begun to resemble an unavoidable direct
consequence of criminal convictions more than an uncertain
collateral consequence. See, e.g., Couto, 311 F.3d at 189-90
(characterizing argument as persuasive and deserving of careful
A number of state courts have moved away from treating
deportation as a purely collateral consequence of criminal
convictions. For example, the Oregon Supreme Court has held that
"failure of counsel to request from the court a recommendation
against deportation where the defendant, in fact, was subject to
deportation as a result of his conviction rendered counsel's
assistance constitutionally inadequate." Lyons v. Pearce,
694 P.2d 969, 978, 298 Or. 554, 568 (1985). The Colorado Supreme
Court has said, "[W]hen defense counsel in a criminal case is
aware that his client is an alien, he may reasonably be required
to investigate relevant immigration law." People v. Pozo, 746 P.2d 523, 529
(Colo. 1987) (citation omitted). Similarly, the California Court
of Appeal has held that counsel's failure to adequately
investigate federal immigration law after a client asks about the
deportation consequences of a plea is ineffective assistance.
See People v. Soriano, 240 Cal. Rptr. 328, 336,
194 Cal. App. 3d 1470, 1482 (Cal.Ct.App. 1987).
The American Bar Association has also encouraged counsel to
investigate more thoroughly a client's immigration status. The
ABA Standards for Criminal Justice state that defense counsel
should fully advise their clients of the deportation consequences
they will face as a result of a conviction. INS v. St. Cyr,
533 U.S. 289, 323 n. 48 (2001) (citing ABA Standards for Criminal
Justice, 14-3.2 Cmt., 75 (2d ed. 1982)). The ABA Model Rules of
Professional Conduct also suggest that competent representation
requires attorneys to investigate potential immigration
consequences for their clients. See John J. Francis, Failure
to Advise Non-Citizens of Immigration Consequences of Criminal
Convictions: Should This be Grounds to Withdraw a Guilty Plea?,
36 U. Mich. J.L. Reform 691, 723 (2003) (citing ABA Model Rules
of Prof'l Conduct R. 1.1 (1984)).
Drawing on these standards, the Supreme Court has stated that
"competent defense counsel" would advise a client of the
deportation consequences of his plea. St. Cyr, 533 U.S. at 323 n. 50. Similarly, the United States Court of Appeals for the
District of Columbia has observed that "it is extremely
troublesome that deportation has never been considered a direct
consequence of guilty pleas of the sort that must be brought to
the defendant's attention before his plea may be considered
voluntary[.]" United States v. Russell, 686 F.2d 35, 41 (D.C.
For its part, the Second Circuit has recognized that recent
amendments to immigration law raise the possibility that
deportation should be considered a direct consequence of a guilty
plea. See Couto, 311 F.3d 188-90. The Circuit has also
entertained the idea that its previous decisions in this area are
inapplicable because their rationale no longer reflects the state
of the law. Id. at 190.
Against this backdrop, the Circuit held that "an affirmative
misrepresentation by counsel as to the deportation consequences
of a guilty plea is today objectively unreasonable." Id. at
188. However, the Circuit has not yet reached the point of
"reconsider[ing] whether the standards of attorney competence
have evolved to the point that a failure to inform a defendant of
the deportation consequences of a plea would by itself now be
objectively unreasonable." Id. Until the Circuit does so, this
Court is bound by existing precedent holding that failure to
inform a defendant of the deportation consequences of his plea,
standing alone, does not amount to ineffective assistance of
counsel. See id. at 187; Santelises, 509 F.2d at 704. Under this case law,
Mr. Park's petition fails because he is unable to prove that an
affirmative misrepresentation took place.
Mr. Park's testimony that, prior to his plea, he was told
there would be no deportation consequences to his conviction is
contradicted by all other evidence. Both Mr. Becker and Mr.
Ferriero testified that they do not recall such conversations
taking place at that time. Their recollections are supported by
intra-office communications which show that Mr. Ferriero first
learned about Mr. Park's immigration status in September 2000.
Mr. Park's speculation that these memoranda were fabricated by
his former attorneys is unpersuasive. The law firm would have no
discernible reason to do so. Indeed, the firm would be exercising
curious logic if it decided to cover up its bad advice by making
a record of that bad advice several months later. Mr. Park, on
the other hand, has ample motivation to offer self-serving and
inaccurate testimony. That Mr. Park's version of events has
changed over time also undermines his credibility.
The evidence leads inexorably to the conclusion that Mr. Park
was not affirmatively misled about the deportation consequences
of his conviction prior to the time that he pled guilty. Mr. Park
was not advised inaccurately or otherwise about the
possibility of removal prior to his plea. If the petitioner was
advised about deportation by defense counsel at all, any
incorrect advice he received was offered only after his plea was entered.
Since the petitioner has failed to demonstrate that he was
affirmatively misled by counsel prior to his plea, he is unable
to prove ineffective assistance, and he fails to demonstrate
circumstances sufficiently compelling to warrant coram nobis
relief. In the absence of such a showing, the writ should not be
For the reasons stated above, I recommend that Mr. Park's
petition for the writ of error coram nobis be denied. Pursuant to
28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days to
file written objections to this report and recommendation. Such
objections shall be filed with the Clerk of the Court, with extra
copies delivered to the chambers of the Honorable Jed S. Rakoff,
Room 1340, and to the chambers of the undersigned, Room 1960, 500
Pearl Street, New York, New York 10007. Failure to file timely
objections with preclude appellate review.
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