New York Federal Criminal Practice Blog
November 28, 2007

SDNY Judge Grants Writ of Error Coram Nobis Vacating Petitioner's Conviction that Mandated Deportation

Li Hua Qiao won an early holiday gift when his petition for a writ of error coram nobis was granted two weeks ago, in Qiao v. United States, 07 Civ. 3727 (SHS), 2007 WL 4105813 (S.D.N.Y. November 15, 2007).  As a result, his 1999 conviction for mail fraud was vacated and this father of four U.S.-born children is no longer ineligible for relief from removal. 

The extraordinary remedy of a writ of error coram nobis, generally sought to review a criminal conviction after the appeals process is exhausted and the petitioner is no longer in custody, is only granted to those who demonstrate that (a) there are circumstances compelling such action to achieve justice, (b) sound reasons exist for failure to seek appropriate earlier relief, and (c) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.

Here, it was not disputed that the third requirement existed: Qiao continued to suffer legal consequences from his conviction in the form of removal proceedings based on the conviction itself. As for (a), the court found that Qiao had received ineffective assistance of counsel by virtue of his lawyer's erroneous advice that his guilty plea to an aggravated felony would not subject him to automatic deportation.  The advice prejudiced Qiao because but for that error, Qiao would have pled guilty to criminal conduct that was not an aggravated felony (i.e. a mail fraud charge with a loss amount of less than $10,000) and thus did not trigger mandatory removal.  The government appeared to concede that a plea to a lower loss figure would have been an option here - a rare opportunity that most likely would have been afforded to Qiao because of his status as a useful cooperator. 

Finally, the court held that Qiao's 2.5 year delay in seeking the writ after removal proceedings were commenced was justified based on advice of counsel that he challenge the removal proceeding administratively first.  As the court noted: “Although it may have been more prudent of [petitioner] to collaterally attack his conviction earlier, his course of action was reasonable. The law does not require [petitioner] to challenge his conviction at the earliest opportunity, it only requires [petitioner] to have sound reasons for not doing so" (quoting United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir.2005)).


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