___________ No. 95-4156

___________ United States of America, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Carlos Camacho-Bordes, * * Appellee. *

__________ Submitted: May 17, 1996 Filed: September 3, 1996

__________ Before MAGILL, LAY, and ROSS, Circuit Judges.

___________ MAGILL, Circuit Judge.

Pursua nt to a plea agreement, Carlos Camacho-Bordes, a Mexica n national, pled guilty in 1985 to possession of cocaine with intent t o distribu te, in violation of 18 U.S.C. § 841(a)(1). Based on thi s conviction for a drug trafficking crime, he was subsequently deported. Se e 8 U.S.C. § 1251(a)(11). After unsuccessfully attacking his deportation, Camacho-Bordes brought the present action under 28 U.S.C. § 1651 t o withdraw his guilty plea, contending that the go vernment breached the plea agreement. Although initially denied, the motio n was later granted by the distri ct court after Camacho-Bordes presented new evidence. Because w e conclude that the ple a agreement did not contain an unfulfillable promise and the government did not breach the plea agreement, we reverse.

### -2- I.

Camacho-Bordes lawfully entered the United States in 1979. Base d upon his subsequent marriage to a United States citizen in 1983, he became a lawful permanent resident on November 13, 1983.

In 1985, Camacho-Bordes was arrested on various cocaine distribution ch arges, arising from incidents occurring in 1983 and 1985. Tw o indictments were issu ed against him, each charging him with two counts of distribution of cocaine and one count of conspir acy to distribute cocaine. With a possible sentence of fifteen years on each of the six counts , Camacho-Bordes admitted that he faced "a very long possible prison sentenc e if [he] we re to be convicted on all the counts." Tr. of Proceeding s (Change of Plea) at 8 (Dec. 27, 1985).

Camacho-Bordes, in order to lessen the likelihood of deportatio n foll owing his prison term, pled guilty to one count of possession o f cocaine, a violation of 18 U.S.C. § 841(a)(1). See Appellee's Br. at 2. In exchange for the p lea, the government dismissed the other five charges pending against Camacho-Bordes. The plea agreement stipulated that "the Go vernment agrees, if requested by Mr. Bordes, to make a writte n recommendation against deportation to the INS." Tr. at 3.
At the change of plea hearing, the s entencing district judge, (then) Chief Judge Diana Murphy, spent considerable time with Camacho-Bordes to ensure that he fully understood the terms of the plea agreement:

THE COURT: And did you listen while Ms. de la Vega wa s stating the plea agreement? DEFENDANT BORDES: Yes, I did.
THE COURT: Did she leave anything out that you think is part of the agreement?

### -3- DEFENDANT BORDES: No, I don't think so.
TH E COURT: Do you think that you've been promised an y benefit of any type that wasn't mentioned here?
DEFENDANT BORDES: No.

. . . . THE COURT: Part of this agreement is t hat if you want -- and I'm sure that you may well want the Government to follow up on th is -- but that the Government would write a lette r recommending that you no t be deported. But are you aware that you could still be deported. DEFENDANT BORDES: Yes, I am.
TH E COURT: Okay. This Court doesn't have any contro l over that. Do you understand that? DEFENDANT BORDES: I understand that.
THE CO URT: And the U.S. Attorney also doesn't contro l that. DEFENDANT BORDES: I understand.
THE C OURT: Although presumably the INS will conside r carefully what the U.S. Attorney says, it doesn't have to d o what the U.S. Attorney recommends. Do you understand that? DEFENDANT BORDES: I do.
THE COURT : So you could face this 15 years in prison , and you could be deported. Do you understand that? DEFENDANT BORDES: I understand that.

Tr. at 5-7 . After the plea was taken, the district court sentence d Cama cho-Bordes to eighteen months imprisonment and three years specia l parole.

While Camacho-Bordes was serving his sentence, the INS institute d dep ortation proceedings against him, based on his conviction for a dru g trafficking crime. See 8 U.S.C.

### Under § 212(c), "[a]liens lawfully admitted for permanent 1 

### residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to" certain specified grounds for exclusion enumerated in § 212(a) of the INA. 8 U.S.C. § 1182(c) (emphasis added). This provision has been interpreted to also permit the Attorney General to waive the deportation of a lawfully admitted permanent resident in the United States who has maintained a lawful unrelinquished domicile of more than seven consecutive years. See Margalli-Olvera v. INS , 43 F.3d 345, 348 n.1 (8th Cir. 1994).
-4- § 1251 (a)(11). Camacho-Bordes conceded his deportability at hi s dep ortation hearing before an immigration judge (IJ) on April 27, 1988

. Nevertheless, he petitioned for discretionary re lief under § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c), which permits the Attorney General to waive the deportation of a lawfully admitte d permanent resident who has resided in the United States for seven years. 1 The IJ noted that the seven-year residency clock started when Camacho

Bordes became a lawfu l resident in 1983, and not when he first arrived in the Unite d States in 1979. Thus, he was ineligible for a discretionar y waiver of deportation under § 212(c) because at the time of the hearing he had been a permanent resident for only five years.

Cam acho-Bordes appealed this ruling to the Board of Immigratio n Appeals (BIA), contending that the seven-year clock should have begun to
run wh en he first entered the United States. He further noted that , regardles s of when the clock began running, as of the time of the BI A decision, handed down on October 27, 1993, he me t the seven-year residency requirement. Thus, he argued, his case should be remanded to the IJ for
a discretionary § 212(c) hearing. He also argued, for the first time on appeal to the BIA, that the plea agreement was invalid.

The BIA rejected Camacho-Bordes's arguments. The BIA declined t o consider the plea agreement argument because it was raised for

### We note that writs of error coram nobis were abolished in 2 

### civil cases by Federal Rule of Civil Procedure 60(b). However, in the context of the present case, the motion "is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding." United States v. Morgan , 346 U.S. 502, 505 n.4(1954). Therefore, Rule 60(b) is inapplicable, and CamachoBordes may seek coram nobis relief. See id. at 505-06 n.4.
-5- the fir st time on appeal. The BIA then noted that the seven-year cloc k begins to run at the time of permanent residence. Finally, the BIA refuse d to count the residency time accrued while his appeal was pending towards § 212(c)'s residency requirement, concluding that the appeal was brought solely to delay the proceedings in order to meet the residency requirement

.

Camacho- Bordes filed a petition for review in this Court. Becaus e Camacho-Bordes had be en convicted of a drug trafficking offense, however, the filing of a petition for review did not automatically stay the order of dep ortation. When Camacho-Bordes sought a temporary stay o f deportation, the INS submitted a memorandum in opposition to this motion. Although a temporary stay was granted, it was subsequently dissolved, and
on April 8, 1994, Camacho-Bordes was deported to Mexico. The INS the n sough t to have this Court dismiss the appeal for lack of jurisdiction

. This Court agreed, explaining that it could main tain jurisdiction over the appeal of an already-deported alien only if the record reveals a colorable due process claim, which was not present in this case. See Camacho-Bordes

v. INS , 33 F.3d 26, 27-28 (8th Cir. 1994) (interpreting 8 U.S.C

. § 1105a(c)).

On Marc h 29, 1994, before this Court had announced its decision i n Camacho-Bordes , Camacho-Bordes petitioned the di strict court for a writ of coram nobi s, pursuant to the All Writs Act, 28 U.S.C. § 1651, seeking to 2 have his guilty plea withdrawn and his conviction reversed. He argued tha t (1) the government had failed to honor its obligation under the ple a agreement to tender a

### -6-

recommendation against his deportation to the INS, and (2) the ple a agreement was voidable because the government's promise wa s "unfulfillable," having been made to a resident alien who had been a lawfu l resident in the United States for less than seven years, and who thus woul d fail to qualify for discretionary relief under INA § 212(c).

The c ore of Camacho-Bordes's argument was that "Bordes understoo d that this [plea] agre ement would avoid his being deported from the United States as a result of his guilty plea." Mem. at 4 (Mar. 29, 1994)

. Camach o-Bordes further asserted that he "relied upon and believed th e nego tiated plea . . . provided protection against his being deporte d because of this conviction," and that he was "un der the impression that it
was within the power of the U.S. Attorney's office to effectuate th e process by which Bordes could avoid deportation." Id. at 7.

Th e district court rejected Camacho-Bordes's arguments. The cour t exp lained that at the time of the change of plea proceedings in 1985 , Camacho-Bordes acknowledged "under oath in open court that he understood

. . . the agreement did not guarantee that he would be allowed to remain in t he United States." Order at 4 (Aug. 8, 1994). The district cour t further noted that there was a condition precedent to the government's dut y to recommend against Camacho-Bordes's deportation, namely his request of the letter. Because this condition precedent was never fulfilled, th e governme nt did not breach the plea agreement. Id. at 5. Finally, th e district court noted that Camacho-Bordes "presen ted no evidence suggesting that the promises to recommend against deportation were unfulfillable. " Id. Camacho-Bordes moved for reconsideration of this order, but his motio n was denied.
On July 3, 1995, Camacho-Bordes, relying heavily on Margalli

### In Margalli-Olvera , Margalli-Olvera, a co-defendant of 3 

### Camacho-Bordes, pled guilty to possessing cocaine. The plea agreement stated, in relevant part, that "the United States will remain silent regarding deportation." Margalli-Olvera , 43 F.3d at 348. At a subsequent hearing concerning Margalli-Olvera's deportability, the INS objected to several pieces of evidencepresented by Margalli-Olvera. The IJ concluded that MargalliOlvera was deportable, and this ruling was upheld by the BIA. Further, the IJ noted that Margalli-Olvera was not eligible for § 212(c) relief, because he did not meet the seven-year residency requirement. Although he would have met this requirement by the time his appeal to the BIA was decided, the BIA held that his appeal was frivolous, and so the time accrued during the pendency of the appeal was not counted. Margalli-Olvera appealed to this Court. Construing the term "United States" in the plea agreement to include the INS, the Court held that the INS breached the plea agreement by objecting to evidence, rather than remaining silent, at the initial hearing. See id. at 351-54. Thus, Margalli-Olvera's appeal to the BIA, which included this issue, was not frivolous. Because the appeal was not frivolous, the time accrued during the pendency of the appeal to the BIA should have counted for § 212(c) purposes. With this added time, Margalli-Olvera met the residency requirement, and the Court remanded for a § 212(c) hearing. See id. at 356-57. Although (then) Chief Judge Diana Murphy had ruled on 4 

### Camacho-Bordes's earlier motions, given her subsequent elevation to the Eighth Circuit, a new district judge was assigned to hear this motion.
-7- Olvera v. INS , 43 F.3d 345 (8th Cir. 1994), moved the district court to 3 4 reopen the proceedings for consideration of new evidence and to have his guilty plea withdrawn --essentially, a second petition for a writ of coram nobis. Camacho-Bordes contended that the plea a greement was breached when the INS recommended t hat this Court not grant Camacho-Bordes's motion for
a stay of deportation. Camacho-Bordes further argued that because hi s breach of plea argument has merit, his appeal to the BIA was not frivolous

. Accordingly, the time accrued during the appeal should have counted toward s the § 212(c) residency requirement, which Camacho-Bordes would now meet. Finally, Camacho-Bordes renewed his argument that the plea agreement was voidable because it contained an unfulfillable promise when made.

### The government's motion to supplement the record on appeal 5 

### is granted. Both writs are used to challenge a conviction or sentence, 6 

### the main difference between the two being that coram nobis relief is available when the defendant is no longer in custody for the applicable conviction, while custody is a prerequisite for habeas relief. See United States v. Little , 608 F.2d 296, 299 & n.5 (8th Cir. 1979), cert. denied , 444 U.S. 1089 (1980). -8- The district court granted the motio n. The court conclusorily noted that "the government did not act in good faith in denying him the hearing that he was entitled to under Margalli-Olvera , thereby breaching the plea agreement." Mem. & O rder at 4 (Nov. 13, 1995). While the district court did not specify why Camacho-Bordes was entitled to a hearing unde r Margalli-Olvera , we assume that the district cou rt concluded that the plea agreement was void, either because (1) the agreement as entered into was unf ulfillable, or (2) the INS was bound by the plea agreement, and i t actively breached the agreement when it recommended to this Court tha t Camacho-Bordes be dep orted. Given this, the time spent by Camacho-Bordes pursuin g his appeal should count for purposes of § 212(c)'s residenc y req uirement, and with this extra time, Camacho-Bordes is eligible for a § 212(c) hearing. The government appeals this ruling. 5

II.
As a threshold matter, the government contends that, given the denial of the first petition for a writ of coram nobis, the second petition for the writ should have been barred under the doctrine of res judicata. We disagree.

The re is scant case law on the application of res judicata to a petition for a writ of coram nobis. However, coram nobis relief i s "s ubstantially equivalent" to habeas corpus relief, United States v

. 6 Little , 608 F.2d 296, 299 (8th Cir. 1979); see also United States v

. Morgan , 346 U.S. 502, 506 n.4 (motion for writ of

### The government also contends that the arguments raised in 7 

### the second petition are governed by the law of the case. In light of the new evidence raised, we conclude that the law of the case doctrine is inapplicable.
-9- coram nobis "is of the same general character as one under 28 U.S.C

. § 2255" ), and it is well settled that, in habeas cases, res judicata i s subsumed under the eq uitable abuse of the writ doctrine, and is therefore inapplicable. See, e .g. , Wong Doo v. United States , 265 U.S. 239, 240-41 (1924) (successive pe titions for writ of habeas corpus do not turn on the "inflexible doctrine of res judicata ," but rather on whether the successiv e pet ition constitutes an abuse of the writ). We conclude that thi s principle also applies to coram nobis cases.

Given the recent decision in Margalli-Olvera , supra , and the ne w evidence supporting Camacho-Bordes's breach of p lea argument, the district court did not err in considering the second petition. 7

III.
A writ of coram nobis is an "extraordinary remedy," and courts should grant the writ "only under circumstances compell ing such action to achieve justice" and to correct errors "of the most fundamental character." Unite d States v. Morgan , 346 U.S. 502, 511-12 (1954). Accordingly, a petitioner must show a compelling basis before coram nobis relief will be granted, se e Kandiel v. United States , 964 F.2d 794, 797 (8th Cir. 1992), and the movan t "must articulate the fundamental errors and compelling circumstances for relief in the application for coram nobis ." Id. In coram nobis cases, we review the district court's legal conclusions de novo. See Estate o f McKinney v. United States , 71 F.3d 779, 781 (9th Cir. 1995).

Camacho-Bordes advances two argument s in support of his petition for the writ: (1) the plea agreement contained an

### We note that, even if the plea agreement does refer to a 8 

### written recommendation at a § 212(c) hearing, this promise would not be unfulfillable in perpetuity, but only for that time period before which Camacho-Bordes met § 212(c)'s seven-year residency requirement. Whether a promise that can only be fulfilled at some future (and possibly, in the event of an intervening deportation, too-late) date should be termed an unfulfillable promise presents an interesting question. However, we have no need of answering this question because we conclude that the plea agreement was not contingent on a § 212(c) hearing. See infra

. -10- unf ulfillable promise, and thus it was voidable; and (2) the governmen t breached the plea agreement when the INS argued that Camacho-Bordes b e deported. We address each argument in turn.

A.
Camacho-Bordes first argues that his plea should be withdrawn b ecause the government's promise to recommend in writing that he not be deported was an unfulfillable promise. Camacho-Bordes asks this Court to read the plea a greement as requiring the government to make its recommendatio n against deportation at a § 212(c) hearing. Beca use Camacho-Bordes was not eligible for discretionary relief from deportation under § 212(c) at the time of the plea agre ement, he contends that the government's promise was unful fillable and meaningless. Plea agreements are "contractual i n 8 natu re, and are interpreted according to general contract principles. " Margalli-Olvera , 43 F .3d at 351. Issues concerning the interpretation of plea agreements are issues of law which we review de novo. See id. at 350

.

In Santobello v. New York , 404 U.S. 257 (1971), the Supreme Cour t noted t hat "when a plea rests in any significant degree on a promise o r agr eement of the prosecutor, so that it can be said to be part of th e inducement or consideration, such promise must b e fulfilled." Id. at 262. Therefore, the validity of a guilty plea may be impaired where the plea is ind uced by misrepresentations, including unfulfilled or unfulfillabl e promises. See Mabry v.

### Camacho-Bordes does not argue that a § 212(c) limitation 9 

### was intended to be part of the agreement but was inadvertently left out of the final recitation. The district court asked Camacho-Bordes, after reciting the plea agreement, whether the agreement as stated left out any terms that he thought were part of the agreement, and whether he was promised anything left out of the agreement. To both questions he answered, "No." Tr. at 6. The letter of recommendation was not explicitly tied to a § 212(c) hearing.
-11- Johnson , 467 U.S. 504, 509 (1984) (quoting Brady v. United States , 397 U.S

. 742, 755 (1970)).

The p lea agreement does not state that the recommendation will b e used s pecifically at a § 212(c) hearing. Indeed, the writing of th e recommendation letter is not tied to any specific hearing. The agreement merely states that when Camacho-Bordes requests a letter of recommendation , the government is obligated to write it. In the absence of any temporally

limiting language, we assume that the government 's potential duty arose as soon as the agreement was entered into. 9

Further, we will not infer that the parties intended th e recommendation to be used at a § 212(c) hearing. A § 212(c) hearing is no t the only vehicle available to the INS to derail a deportation--the INS has discretion to avoid deporting someone at other stages of the proceedings
as well. For example, the INS district director has prosecutoria l discretion in deciding whether or not to institute deportation proceedings

. See Johns v. Department of Justice , 653 F.2d 884 , 889 (5th Cir. 1981) (the Attorney General "has discretion to refrain from instituting [deportation] procee dings even though grounds for their commencement may exist"); se e also Caba sug v. INS , 847 F.2d 1321, 1324 (9th Cir. 1988). Further , Camac ho-Bordes could have sought cancellation of the deportatio n proce edings as improvidently begun, pursuant to 8 C.F.R. § 242.7. Se e Lopez-Telles v. INS , 564 F.2d 1302, 1304 (9th Cir. 1977); Matter of Wong , 13 I. & N. Dec. 701, 703 (1971) ("enforcement of ficials of the Immigration and

### -12-

Naturalization Service, as a matter of prosecutive judgment , may move . . . for a t ermination of deportation proceedings as improvidently begun" ) (emphasis added).

There are several points in the deportation process that the letter from the United States Attorney's Office could have assisted Camacho-Borde s in his efforts to legally remain in this country . Given this, there is no basis for implying that the parties intended the letter to be used only at a § 212(c) hearing.

The only promise made by the government was that, upon request b y Camac ho-Bordes, it would draft a written recommendation against hi s deportation. There is no doubt that this promise was fulfillable. That Camacho-Bordes chose to not request a letter of recommendation is not the government's fault, and we will not vacate the g uilty plea on this ground.

B.
Camacho-Bordes next contends that he understood that, by enteri ng the plea agreement, he wo uld not be deported. This would be an unfulfillable promis e, because the United States Attorney's Office cannot dictate th e outcome of a deportat ion proceeding. Therefore, if the government did in fact make this promise, it would cast doubt on the validity of the plea.

However, the record is clear that no such promise was made by th e go vernment. The government explicitly promised to recommend agains t deportation to the INS. No more was promised; no outcome was assured

. Camacho-Bordes himself admitted that he received no promises other than th e writing of t he letter in exchange for his plea. Tr. at 6. Given th e colloquy between the district court and Camacho-Bordes, at which CamachoBordes stated that he understood that he could still be deported despite the plea agreement, it is clear that this argument has no merit.

### -13- C.

Fin ally, Camacho-Bordes contends that the government breached th e plea agreement when t he INS recommended to this Court that Camacho-Bordes be deported. The district court agreed, noting that the government "did not act in good faith" in breaching its plea agreement and denying him a § 212(c) hearing.
Only if the term "Government" in the plea agreement includes the INS does Camacho-Bordes have a winning argument, for it is only the INS that took any action adverse to Camacho-Bordes. It would certainly not be in good faith to offer a written recommendation against deportation and then write a memorandum su pporting deportation. The district court apparently assumed that the plea agreement's reference to "Government" does include the INS, and it there by concluded that the government acted in bad faith.
We disagree. The plea agreement did not purport to bind the IN S, nor did it bind any gover nment entity other than the United States Attorney's Office. In Margalli- Olvera , supra , the panel in that case, in construing the "U nited States" to include the INS, specifically distinguished tha t conclusion from the f acts here in Camacho-Bordes . As the Margalli-Olvera Court noted,

Camacho-Bordes merely stands for the unremarkable proposition that a plea agreement that by its own explicit terms applie s only to the United States Attorney's Office does not bind the INS.
. . . The unambiguous terms of the Camacho-Bordes ple a agreement specifically obligated the United States Attorney's Off ice to recommend to the INS that Camacho-Bordes not b e dep orted. . . . The obligation in Camacho-Bordes involve s int ragovernmental communication between two unambiguousl y identified agencies.
Margalli-Olvera , 43 F.3d at 351. We agree with this analysis. The plea agreem ent states that "the Government agrees . . . to make a writte n recommendation against deportation to the INS." Tr. at 3.

### -14-

The "Government" and the "INS" are set up as two different entities , strongly suggesting that the "Government" does not include the INS.
Further, during the taking of the plea, the district court note d that "[a]lt hough presumably the INS will consider carefully what the U.S

. Attorney says, it doesn't have to do what the U.S. Attorney recommends." Tr. at 7. There is a distinction drawn between who is doing th e recommending--the U.S. Attorney--and who is doing the considering--the INS

. Becaus e the INS is free to reject the "Government's" recommendation , construing the plea agreement to bind the INS would make no sense. Becaus e the plea agreement does not bind the INS, there was no bad faith exhibited by the INS's recommendation of deportation.

IV.

We conclude that Camacho-Bordes is not entitled to withdraw his plea, because the plea agreement did not contain an unfulfillable promise, nor was it breached by th e United States Attorney's Office. Further, because the agreement was not breached, Camacho-Bordes is not entitled to a § 212( c) hearing. For the reasons stated above, the decision of th e district court is reversed.
LAY, dissenting.

In 198 5, Carlos Camacho-Bordes entered a guilty plea to a dru g trafficking offense pursuant to a plea agreement . The district court, the Honorable Paul A. Mag nuson, presiding, granted Camacho-Bordes's motion to withdraw his guilty plea, finding that the government failed to fulfill it s plea agreement and exhibited bad faith by deport ing Camacho-Bordes without giving him the opportunity to present the government's recommendatio n against deportation. I find no error in the district court's analysis.

### The plea agreement, which was presented orally in the 1 

### district court, provided that "the Government agrees, if requested by Mr. Bordes, to make a written recommendation against deportation to the INS." In taking the plea from Camacho-Bordes, the district court, the Honorable Diana Murphy, said, "Part of this agreement is that if you want -- and I'm sure that you may well want the Government to follow up on this -- but that the Government would write a letter recommending that you not be deported." Judge Murphy explained that "presumably the INS will consider carefully what the U.S. Attorney says, [although] it doesn't have to do what the U.S. Attorney recommends." Camacho-Bordes was without question deportable under the 2 

### immigration laws and thus rightfully conceded deportability. See Immigration and Nationality Act, § 241(a)(11), 8 U.S.C. § 1251(a)(11) (1988) (providing for the deportation of any alien convicted of certain drug offenses) (now codified as amended at 8 U.S.C. § 1251(a)(2)(B)(i)).
-15- The record shows that Camacho-Bordes 's sole purpose in entering into the plea bargain with the government was to ameliorate the negativ e immigration consequences that would flow from his conviction, including th e burdens that deportat ion would place on his U.S. citizen spouse and their fo ur U.S. citizen children. The plea bargain was induced by th e government's promise to recommend against deportation upon his request. 1
In the context of this case, the gov ernment, at least in my judgment and the judgment of the district court, has attempted to play fast an d loose w ith the petitioner. It is true, as the majority finds, that th e plea agreement did not expressly provide that the government' s recommenda tion was to be made at a § 212(c) hearing for discretionar y relief from an order of deportation, see 8 U.S.C. § 1182(c), but the plea agreement and the colloquy reflect the parties' clear intent that CamachoBordes would have a meaningful opportunity to present the government' s recommendation to the INS against his deportation. In his deportatio n pro ceedings, Camacho-Bordes conceded deportability, but sought § 212(c ) 2 relief. At that time, discretionary relief under § 212(c) provided th e only procedure by which he could obtain relief from

### As the Board of Immigration Appeals ("BIA") found in 3 

### response to Camacho-Bordes's argument that the seven-year time period under § 212(c) should have commenced on his first lawful visit to the United States in 1979: We have consistently held that the acquisition of lawful domicile time for purposes of eligibility under section 212(c) of the Act must be subsequent to the date of admission as a lawful permanent resident. Matter of Kim , 17 I&N Dec. 144 (BIA 1979); Matter of Newton , 17 I&N Dec. 133 (BIA 1979); Matter of Anwo , 16 I&N Dec. 293 (BIA 1977), aff'd Anwo v. INS , 607 F.2d 435 (D.C. Cir. 1979); Matter of S- , 5 I&N Dec. 516 (BIA 1953); see also Chiravacharadhikul v. INS , 645 F.2d 248 (4th Cir. 1981), cert. denied , 454 U.S. 893 (1981); Castillo-Felix v. INS , 601 F.2d 459 (9th Cir. 1979).
See Def. Ex. K.
-16- deportation.

The government's reliance on the INS's ability to stop th e depo rtation proceedings in the exercise of prosecutorial discretion i s misplaced. The INS's prosecutorial discretion "is akin to [the Attorney General's] responsibility for enforcing the criminal laws[.]" See Johns v. Department of Justice , 653 F.2d 884, 889 (5th Cir. 1981). Appealing to the prosecutorial discretion of the Attorney General is not a procedure: there is no notice, no opportunity to be heard, no record of decision, and
no req uirement of informed decision-making in the exercise of tha t discretion. The gove rnment's recommendation was not intended to be given to the INS in such an informal and wholly discretionary context.

Although there is no showing that the U.S. Attorney prosecutin g Camacho -Bordes actually knew that he would be ineligible for § 212(c ) relief, the prevailin g law in 1985 was sufficiently well-settled that the U.S. Attorney should have known that Camacho-Bordes would be ineligible fo r § 212 (c) relief until November 13, 1990--seven years after he became a lawful permanent resident on the basi s of his marriage to a U.S. citizen. 3 Neither

### After Camacho-Bordes entered his guilty plea, Congress 4 

### amended § 242 of the Immigration and Nationality Act to provide that "[i]n the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of conviction." See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 701, 100 Stat. 3359, 3445 (1986) (codified at 8 U.S.C. § 1252(i)).
-17- the pr osecutor nor the court nor defense counsel, however, informe d Camacho-Bordes that under existing law in 1985, he would not be eligible for discretionary relief from an order of deportation unless the orde r occurred after November 13, 1990. In such circumstances, the government's 4 promise was illusory and constituted a false ind ucement for Camacho-Bordes to enter his guilty plea.

In Mabr y v. Johnson , 467 U.S. 504 (1984), the Supreme Cour t explained:

"[A] ple a of guilty entered by one fully aware of the direc t consequences, including the actual value of any commitment s made to him by the court , prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinu e improper harassment), mi srepresentation (including unfulfilled or unfulfillable promise s), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g., bribes)."

Id. at 509 (quoting Brady v. United States , 397 U.S. 742, 755 (1970 ) (internal quotation omitted)) (alteration in ori ginal and emphasis added). "[O]nly when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause." Id

. Giv en the development that he was not eligible for discretionary relie f under § 212(c), without which he had no opportunity for a hearing t o develop an administrative record demonstrating equitable factors in hi s favor, it i s clear that he was not fully and fairly apprised of th e illusory nature of the government's promise to make a written

### -18-

recommendation to the INS against his deportation.

Like the district court, I also find that the government exhibite d bad faith by allowing the deportation of Camacho-Bordes that mooted hi s appeal se eking a § 212(c) hearing. Camacho-Bordes sought a stay of hi s deport ation to allow this court to hear his appeal from the order o f deportation. The Department of Justice, represe nting the INS, opposed his motion for a stay, and later moved successfully to dissolve the stay. The Department of Justice was fully aware that if the stay was dissolved, the INS intended to depor t Camacho-Bordes and thereby moot his appeal. In my judgment, it was incumbent upon both the Department of Justice and the U.S

. Attorney (i.e., "the government") to attempt to preserve an opportunity fo r Cam acho-Bordes to present the government's recommendation agains t deportati on. See Camacho-Bordes v. INS , 33 F.3d 26, 27 (8th Cir. 1994 ) (referring to the INS, represented by the Department of Justice, as "the government").

Under Fed. R. Crim. P. 32(d), a defe ndant may only withdraw a guilty plea after the imposition of his sentence if the plea is the product of "' a fundamental defect which inherently results in a complete miscarriage of jus tice' or 'an omission inconsistent with the rudimentary demands of a fair procedure.'" Fed R. Crim. P. 32 advisory committee's note (quoting Hill v. United States , 368 U.S. 424, 428 (1962)). Camacho-Bordes's sole purpos e in entering the plea bargain was to lessen the chance of hi s deportation. He entered that plea bargain based on an illusory promise by the government to make a meaningful recommendation against deportation

. In doing so, he was deprived of his fundamental right to contest his guilt and thereb y contest the government's right of deportation. This is a miscarriage of justic e. Accordingly, I would affirm the district court's judgment allowing Camacho-Bordes to withdraw his guilty plea.

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Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.