A Right Without A Remedy: Virginia Supreme Court Limits Reach of Padilla


Ubi jus ibi remedium.  Roughly translated from Latin as: “For every wrong, the law provides a remedy.”  For those with Padilla-style claims, however, look elsewhere.  This is the basic message that was recently handed down by the Supreme Court of Virgina in the cases of Commonwealth v. Morris and Commonwealth v. Chan.  At issue in both these cases were the use by defendants of rather esoteric postconviction procedural vehicles (i.e., writ of error coram vobis and writs of audita querela) to alter their criminal sentences so as to avoid adverse immigration consequences.  In arguing for relief, the defendants in both these cases relied on Padilla v. Kentucky.  The trial courts said yes, but the Virginia Supreme Court said no.

The opinion is available here.

The court first recounted the historical origins of both these procedural vehicles and then went on to find them inappropriate vehicles for achieving the postconviction relief at issue.  The court, instead, pointed to the writ of habeas corpus, as the avenue for asserting a Padilla-like ineffective assistance claim.

The net effect of the court’s ruling here is to limit the ways an attorney in Virginia, and, potentially other states, can successfully and creatively seek postconviction relief for a client whose old criminal background has come back to haunt him in the immigration context.  For these individuals, saying that they should look to a habeas petition for appropriate relief, is like saying they have no relief at all, since many of their convictions would have been entered long before Padilla hit the books and therefore too old to support a timely habeas petition.

In fact, this ruling brings to mind another Latin phrase, the selection of which I owe to the all-encompassing Wikipedia site:  abusus non tollit usum.  Roughly translated as: “misuse does not remove use.”  Put another way: Just because something is misused doesn’t mean it can’t be used correctly.

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