No Viable Excuse for Convicted Green Card Holder not to be Deported
After a conviction for insurance fraud, among other things, Omar Osman Mohamed (“Mohamed”) brought a petition for a writ of error coram nobis to the USDC in New York to prevent his deportation in Omar Osman Mohamed v. United States Of America., 18cv11193 (DLC), S8 06cr0600-44 (DLC), United States District Court Southern District Of New York (March 30, 2020).
A writ of error coram nobis is an extraordinary remedy. It is available only when habeas relief is unwarranted because the petitioner is no longer in custody.
Mohamed is a Somali citizen who entered the United States as a refugee in 1995. A year later, he became a lawful permanent resident. On November 7, 2007, Mohamed pleaded guilty to a superseding information charging him with misdemeanor possession without a prescription of khat plants containing cathinone, in violation of 21 U.S.C. § 844(a). As part of Mohamed’s plea allocution, the trial judge asked Mohamed if he understood that, as a lawful permanent resident, “you may be subject to deportation on the basis of your conviction.” Mohamed acknowledged this fact. The Court accepted Mohamed’s plea on November 27, 2007. On February 8, 2008, Mohamed was sentenced to time served, a $25 special assessment, and a one-year term of supervised release.
Almost a decade later a Minnesota state court found Mohamed guilty of insurance fraud for referring two patients to a doctor in violation of Minnesota statutes. The Department of Homeland Security (“DHS”) detained Mohamed, asserting that he was eligible for removal based on his 2008 and 2017 convictions.
Mohamed, an immigrant who was ready to use every option available to him in American courts, went through several rounds of immigration proceedings to prevent removal. He survived two sessions with an immigration judge but, on remand for the second time, the Immigration Judge denied Mohamed all relief and ordered that he be removed from the country. Mohamed’s appeal is pending.
Mohamed, proceeding pro se, filed a petition for a writ of habeas corpus to vacate, set aside, or correct his 2008 conviction. Mohamed contended that his trial counsel was constitutionally ineffective because he failed to arrange a plea that avoided adverse immigration consequences and failed to advise Mohamed that his drug conviction could trigger automatic removal
Mohamed, now represented by counsel, in December 2019 filed a petition for a writ of error coram nobis, alleging that his representation by trial counsel was constitutionally deficient for a slightly different reason.
A writ of error coram nobis is available only when habeas relief is unwarranted because the petitioner is no longer in custody. To obtain coram nobis relief a petitioner must demonstrate that
- there are circumstances compelling such action to achieve justice,
- sound reasons exist for failure to seek appropriate earlier relief, and
- the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.
For purposes of a writ of error coram nobis, the petitioner’s conviction is presumed to be correct and the burden rests on the accused to show otherwise. Ineffective assistance of counsel, including during the plea-bargaining process, is a circumstance compelling the grant of a timely application for coram nobis relief.
To demonstrate prejudice from ignorance of the immigration consequences of a plea agreement, a petitioner must show both that he placed particular emphasis on immigration consequences in deciding whether or not to plead guilty and that but for counsel’s unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense.
Deportation was not a certainty. Mohamed’s attorney was not required to advise him that it was. When removal proceedings began, Mohamed could, and did, pursue asylum, Withholding of Removal, and relief under the Convention Against Torture to forestall or prevent removal. He did not.
An affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is objectively unreasonable. In order to prove that he received ineffective assistance, then, Mohamed must show, inter alia, that his trial counsel made an affirmative misrepresentation when counsel advised him that he “may” be deported because of his conviction. Mohamed’s petition failed to meet the prerequisites to obtain a writ of error coram nobis.
As the Order denying Mohamed’s § 2255 petition recognized, there are no sound reasons for him to delay seeking relief for nearly a decade. Mohamed did not explore avenues to vacate the 2008 conviction prior to his § 2255 petition in 2018. Mohamed’s failure to diligently pursue habeas or other relief distinguishes his case from those where courts have excused even significant delay in seeking collateral relief. Mohamed’s delay is not excusable.
Mohamed’s December 5, 2019 petition for a writ of error coram nobis was denied. Mohamed has not made a substantial showing of a denial of a federal right and, therefore, a certificate of appealability shall not be granted.
Insurance criminals are deceptive and devious felons. Mohamed was, without doubt deceptive and has been using the courts of the United States to avoid the well deserved deportation. As a refugee he misused the courtesy provided to him by the United States by honoring it with criminal activity. He was ordered deported and he continues to abuse the United States by bringing frivolous habeas corpus and error corum nobis petitions and appealing the order of the court that required him to be deported. The immigration and refugee adjudication process is failing and he is still in the country able to commit more crimes while the United States must continue appearing in court to defeat his spurious court actions. The country needs good, hard working, honorable immigrants and refugees not people who abuse our laws.
© 2020 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts