WAS THE ATTORNEY REALLY INEFFECTIVE IN KOVACS v. UNITED STATES?

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In Kovacs v. United States, the United States
Court of Appeals for the Second Circuit reversed a lower district court’s
decision denying a writ of error coram
nobis
to vacate a 1999 guilty plea to misprision of felony on the ground
that his lawyer rendered ineffective assistance.




While the outcome of the
Second Circuit’s decision is extremely beneficial for the petitioner Stephen Kovacs,
who would otherwise suffer adverse immigration consequences, it does not appear
that his attorney Robert Fink rendered ineffective assistance. When Kovacs, a
lawful permanent resident, took the guilty plea for misprision of felony in 1999
it was not considered a crime involving moral turpitude, and would not have
then resulted in adverse immigration consequences. Indeed, after taking the
plea in 1999, Kovacs, an Australian national, continued to travel
internationally without incident when in 2009 immigration officials questioned
his ability to reenter the country on the ground that misprision of felony is
considered a crime of moral turpitude.



The writ of coram nobis is an extraordinary remedy
that is sought to correct errors, such as a criminal conviction, based on the
following three factors: 1) there are circumstances compelling such action to
achieve justice, 2) sound reasons exist for failure to seek appropriate earlier
relief, and 3) the petitioner continues to suffer legal consequences from his
conviction that may be remedied by granting the writ. See Foont v. United States,
93 F.3d 76, 79 (2d Cir. 1996).



Kovacs’ key argument for why
he deserved to be granted the writ of coram
nobis
is that his attorney at that time, when he took the guilty plea for
misprision of felony, was ineffective under Strickland
v. Washington
, 466 U.S. 668 (1984). A claim of Strickland ineffectiveness involves a demonstration that: 1) the
defense counsel’s performance was objectively unreasonable; and 2) the deficient
performance prejudiced the defense.



The Second Circuit agreed
that Fink’s representation of  Kovacs,
when he took the guilty plea for misprision of felony, was ineffective under
the Strickland test. The Court relied
on United States v. Couto, 311 F.3d
179, 188 (2d Cir. 2002), which held that an affirmative misrepresentation of
the deportation consequences of a guilty plea fell outside the range of
professional competence and thus met the Strickland
test.



There is, however,
surprisingly no discussion in the Court’s decision on why Fink’s assistance of
Kovacs was ineffective in 1999. It was only in 2006 when the Board of
Immigration Appeals in Matter of Robles, 24 I&N Dec. 22
(BIA 2006) determined that a misprision of felony conviction under 18 U.S.C. §4
was a crime involving moral turpitude. In 1999, when Kovacs took the misprision
plea, the BIA’s holding in Matter of
Sloan
, 12 I&N Dec. 840 (A.G. 1968, BIA 1966), established that
misprision of felony was not a crime involving moral turpitude. Matter of Sloan was only overruled by Matter of Robles many years later! Robles also retroactively applied to
non-citizens previously convicted of misprision of felony.  Any competent and diligent attorney in 1999
could have relied on Matter of Sloan
in advising the non-citizen client to take a plea for misprision for felony as
it did not have adverse deportation consequences at that time. To make this
more bizarre, the Ninth Circuit in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir.2012),  ultimately overturned the BIA in the same
case by holding that misprision is not categorically a crime involving moral
turpitude because it does not require a specific intent to conceal the felony,
but only knowledge of the felony. Therefore, based upon an analysis of minimal
conduct necessary to be implicated under the misprision statute, the Ninth
Circuit held that such conduct is not inherently base, vile or depraved to be
considered morally turpitudinous.   Even
if a Circuit Court has overruled a BIA decision, it would only be inapplicable
within the jurisdiction of that Circuit Court, which in Robles-Urrea is the Ninth Circuit, but the overruled BIA decision
is still applicable everywhere else in the country.



The grant of a writ of coram nobis is undoubtedly a wonderful
outcome for Kovacs whose circumstances were very sympathetic, but the question
is whether his attorney was ineffective in 1999, and affirmatively
misrepresented the deportation consequences so as to be judged to have rendered
ineffective assistance. This did not appear to be the case on the part of his
attorney under Matter of Sloan, the
precedential decision at that time. Moreover, the holding in Matter of Sloan is still considered good
law in the Ninth Circuit.  Perhaps there
may have been some sort of strategic collusion here that is not readily
apparent to an objective reader of the decision.  Fink may have wanted to help his former
client and did not come in the way. The government also may not have wanted to
impede the retroactive applicability of Matter
of Robles
. When an attorney’s incompetence is not so clear cut, the
non-citizen affected by the criminal conviction may consider seeking
alternative remedies such as challenging the retroactive holding of the BIA. It
may sometimes be impermissible for an agency to make a retroactive ruling that
affects reasonable reliance interests. See
Heckler
v. Community Health Servs. of Crawford County, Inc.
, 467 U.S. 51, 60 n.12 (1984),  Miguel-Miguel
v. Gonzales
, 500 F.3d 941, 950-953 (9th Cir. 2007),  Lehman v. Burnley, 866 F.2d
33, 37-38 (2d Cir. 1989). If the plea occurred before the passage of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), then
 non-citizen LPRs who have been convicted
of  crimes involving moral turpitude can
still be admitted if their trips overseas were brief, casual and innocent. See Vartelas
v. Holder
, 132 S. Ct. 1479 (2012).  If the conviction occurred after the passage
of IIRIRA, then a non-citizen may still seek a waiver under INA 212(h) to
overcome the inadmissibility caused by the crime of moral turpitude.



This is not to suggest that non-citizens
should be reluctant to seek to vacate their criminal convictions based on ineffective
assistance of counsel. In
Padilla
v. Kentucky
, 130 S. Ct. 1473 (2010), the Supreme Court allowed a
non-citizen’s plea to be vacated upon ineffective assistance of counsel when
his attorney did not advise him about the immigration consequences of his plea.
Later, in
Chaidez
v. United States
, 133 S. Ct. 1103 (2013), the Supreme Court clarified
that Padilla would not be applied retroactively to criminal cases that were
already final when
Padilla was decided.
However,
Chaidez’s preclusion against retroactivity is inapplicable
when the attorney affirmatively misadvised the non-citizen about the
immigration consequences of the criminal plea, as was the case in
Kovacs, rather than fail to provide any
advice. Still, that advice ought to have been wrong before an ineffective
assistance claim can pass muster. While
an attorney who is found to have rendered ineffective assistance in the
criminal context will likely not be disciplined, one would not want to be 
publicly
 found by a Court of Appeals to have been incompetent and rendered
ineffective assistance several years later just because the law changed
retroactively. An attorney, besides being expected to thoroughly research the
prevailing law at a given point in time, ought not to be expected to gaze into
a crystal ball to determine whether the law can change many years later in
order to avoid being ambushed by an ineffective finding! 






Originally appeared in The Insightful Immigration Blog.

Reprinted with permission.






About The Author





Cyrus D. Mehta
Cyrus Mehta is the founder and managing attorney of Cyrus D. Mehta & Associates, PLLC, a New York law firm which concentrates in the area of US immigration law. The firm has talented immigration attorneys who blog here on contemporary immigration topics. Visit www.cyrusmehta.com for more information.









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