Federal Coram Nobis Granted, Removal Avoided


In United States v. Akinsade (No. 09-7554), the Fourth Circuit took a rare step and granted coram nobis relief to a Nigerian immigrant convicted in federal court. Akinsade, who came to the U.S. legally as a child, worked as bank teller at Chevy Chase bank when he was a teenager. When he was 19, Akinsade cashed several fraudulent checks for friends, and pocketed some of the proceeds. Eventually, he reported the situation to his boss, who notified the FBI. Akinsade was charged with embezzlement and agreed to cooperate against his co-defendants.

Considering whether to accept a plea offer from the Government, Akinsade asked his attorney several times whether he would suffer any immigration consequences as a result of the plea. His attorney stated – incorrectly – that Akinsade could not be deported based on just one conviction, but only if he had two felonies on his record.  In reality, Akinsade faced mandatory deportation. Yet, based on his attorney’s bad advice, Akinsade pleaded guilty.

During the plea colloquy, the lower court stated generally that Akinsade “could” be deported as a result of the conviction, but did not elaborate. At sentencing, the court observed that Akinsade had already paid $8,000 in restitution in full and imposed the minimum sentence under the Guidelines.

After serving his sentence, Akinsade lived an admirable life, by all accounts. He obtained a Bachelor’s degree in computer science from the University of Maryland, earned a Master’s degree with a 3.9 GPA, and was awarded a fellowship from the National Science Foundation. Akinsade was then hired for a prestigious position at General Electric. However, nine years after his conviction, he was arrested by immigration authorities, who initiated deportation proceedings based on his embezzlement conviction.

The only way for Akinsade to remain in the U.S. was to ask the court to set aside this conviction. He filed a coram nobis petition in federal court alleging that his attorney violated his constitutional rights in misadvising him about the possibility of deportation. He further alleged that had he been properly advised of the immigration consequences, he would have proceeded to trial rather than plead guilty.

The Fourth Circuit agreed. In vacating Akinsade’s conviction, the court held that, by providing advice that was “clearly contrary” to the law, the attorney violated Akinsade’s Sixth Amendment right to effective assistance of counsel. The Court also noted that the lower court’s general advice that Akinsade “could” be deported was not sufficient to cure the attorney’s misadvice that Akinsade “would not” face deportation. As a result of his attorney’s deficient representation, Akinsade’s conviction was vacated, thus ensuring that he would not be removed from the United States.