___________

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.

Pursuant to a plea agreement, Carlos Camacho-Bordes, a Mexican

national, pled guilty in 1985 to possession of cocaine with intent to

distribute, in violation of 18 U.S.C. § 841(a)(1). Based on this

conviction for a drug trafficking crime, he was subsequently deported. See

8 U.S.C. § 1251(a)(11). After unsuccessfully attacking his deportation,

Camacho-Bordes brought the present action under 28 U.S.C. § 1651 to

withdraw his guilty plea, contending that the government breached the plea

agreement. Although initially denied, the motion was later granted by the

district court after Camacho-Bordes presented new evidence. Because we

conclude that the plea agreement did not contain an unfulfillable promise

and the government did not breach the plea agreement, we reverse.
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I.

Camacho-Bordes lawfully entered the United States in 1979. Based

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

charges, arising from incidents occurring in 1983 and 1985. Two

indictments were issued against him, each charging him with two counts of

distribution of cocaine and one count of conspiracy 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 sentence

if [he] were to be convicted on all the counts." Tr. of Proceedings

(Change of Plea) at 8 (Dec. 27, 1985).

Camacho-Bordes, in order to lessen the likelihood of deportation

following his prison term, pled guilty to one count of possession of

cocaine, a violation of 18 U.S.C. § 841(a)(1). See Appellee's Br. at 2.

In exchange for the plea, the government dismissed the other five charges

pending against Camacho-Bordes. The plea agreement stipulated that "the

Government agrees, if requested by Mr. Bordes, to make a written

recommendation against deportation to the INS." Tr. at 3.

At the change of plea hearing, the sentencing 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 was

stating the plea agreement?

DEFENDANT BORDES: Yes, I did.

THE COURT: Did she leave anything out that you think is

part of the agreement?
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DEFENDANT BORDES: No, I don't think so.

THE COURT: Do you think that you've been promised any

benefit of any type that wasn't mentioned here?

DEFENDANT BORDES: No.

. . . . 

THE COURT: 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. But are you aware that

you could still be deported.

DEFENDANT BORDES: Yes, I am.

THE COURT: Okay. This Court doesn't have any control

over that. Do you understand that?

DEFENDANT BORDES: I understand that.

THE COURT: And the U.S. Attorney also doesn't control

that.

DEFENDANT BORDES: I understand.

THE COURT: Although presumably the INS will consider

carefully what the U.S. Attorney says, it doesn't have to do

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 sentenced

Camacho-Bordes to eighteen months imprisonment and three years special

parole.

While Camacho-Bordes was serving his sentence, the INS instituted

deportation proceedings against him, based on his conviction for a drug

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).

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§ 1251(a)(11). Camacho-Bordes conceded his deportability at his

deportation hearing before an immigration judge (IJ) on April 27, 1988.

Nevertheless, he petitioned for discretionary relief 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 admitted

permanent resident who has resided in the United States for seven years.1

The IJ noted that the seven-year residency clock started when CamachoBordes became a lawful resident in 1983, and not when he first arrived in

the United States in 1979. Thus, he was ineligible for a discretionary

waiver of deportation under § 212(c) because at the time of the hearing he

had been a permanent resident for only five years.

Camacho-Bordes appealed this ruling to the Board of Immigration

Appeals (BIA), contending that the seven-year clock should have begun to

run when he first entered the United States. He further noted that,

regardless of when the clock began running, as of the time of the BIA

decision, handed down on October 27, 1993, he met 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 to

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.

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the first time on appeal. The BIA then noted that the seven-year clock

begins to run at the time of permanent residence. Finally, the BIA refused

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. Because

Camacho-Bordes had been convicted of a drug trafficking offense, however,

the filing of a petition for review did not automatically stay the order

of deportation. When Camacho-Bordes sought a temporary stay of

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 then

sought to have this Court dismiss the appeal for lack of jurisdiction.

This Court agreed, explaining that it could maintain 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 March 29, 1994, before this Court had announced its decision in

Camacho-Bordes, Camacho-Bordes petitioned the district court for a writ of

coram nobis, 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 that

(1) the government had failed to honor its obligation under the plea

agreement to tender a
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recommendation against his deportation to the INS, and (2) the plea

agreement was voidable because the government's promise was

"unfulfillable," having been made to a resident alien who had been a lawful

resident in the United States for less than seven years, and who thus would

fail to qualify for discretionary relief under INA § 212(c). 

The core of Camacho-Bordes's argument was that "Bordes understood

that this [plea] agreement would avoid his being deported from the United

States as a result of his guilty plea." Mem. at 4 (Mar. 29, 1994).

Camacho-Bordes further asserted that he "relied upon and believed the

negotiated plea . . . provided protection against his being deported

because of this conviction," and that he was "under the impression that it

was within the power of the U.S. Attorney's office to effectuate the

process by which Bordes could avoid deportation." Id. at 7.

The district court rejected Camacho-Bordes's arguments. The court

explained 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 the United States." Order at 4 (Aug. 8, 1994). The district court

further noted that there was a condition precedent to the government's duty

to recommend against Camacho-Bordes's deportation, namely his request of

the letter. Because this condition precedent was never fulfilled, the

government did not breach the plea agreement. Id. at 5. Finally, the

district court noted that Camacho-Bordes "presented no evidence suggesting

that the promises to recommend against deportation were unfulfillable."

Id. Camacho-Bordes moved for reconsideration of this order, but his motion

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 evidence

presented 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 agreement was breached when

the INS recommended that this Court not grant Camacho-Bordes's motion for

a stay of deportation. Camacho-Bordes further argued that because his

breach of plea argument has merit, his appeal to the BIA was not frivolous.

Accordingly, the time accrued during the appeal should have counted towards

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 motion. 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. & Order at 4 (Nov. 13, 1995). While the district court

did not specify why Camacho-Bordes was entitled to a hearing under

Margalli-Olvera, we assume that the district court concluded that the plea

agreement was void, either because (1) the agreement as entered into was

unfulfillable, or (2) the INS was bound by the plea agreement, and it

actively breached the agreement when it recommended to this Court that

Camacho-Bordes be deported. Given this, the time spent by Camacho-Bordes

pursuing his appeal should count for purposes of § 212(c)'s residency

requirement, 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.

There is scant case law on the application of res judicata to a

petition for a writ of coram nobis. However, coram nobis relief is

"substantially 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.

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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 is

subsumed under the equitable 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 petitions for writ of habeas corpus do not turn on the

"inflexible doctrine of res judicata," but rather on whether the successive

petition constitutes an abuse of the writ). We conclude that this

principle also applies to coram nobis cases.

Given the recent decision in Margalli-Olvera, supra, and the new

evidence supporting Camacho-Bordes's breach of plea 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 compelling such action to achieve

justice" and to correct errors "of the most fundamental character." United

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, see

Kandiel v. United States, 964 F.2d 794, 797 (8th Cir. 1992), and the movant

"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 of

McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995).

Camacho-Bordes advances two arguments 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.

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unfulfillable promise, and thus it was voidable; and (2) the government

breached the plea agreement when the INS argued that Camacho-Bordes be

deported. We address each argument in turn.

A.

Camacho-Bordes first argues that his plea should be withdrawn because

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 agreement as requiring the government to make its recommendation

against deportation at a § 212(c) hearing. Because Camacho-Bordes was not

eligible for discretionary relief from deportation under § 212(c) at the

time of the plea agreement, he contends that the government's promise was

unfulfillable and meaningless. Plea agreements are "contractual in

8

nature, 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 Court

noted that "when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled." Id. at 262.

Therefore, the validity of a guilty plea may be impaired where the plea is

induced by misrepresentations, including unfulfilled or unfulfillable

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.

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Johnson, 467 U.S. 504, 509 (1984) (quoting Brady v. United States, 397 U.S.

742, 755 (1970)).

The plea agreement does not state that the recommendation will be

used specifically at a § 212(c) hearing. Indeed, the writing of the

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 temporallylimiting 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 the

recommendation to be used at a § 212(c) hearing. A § 212(c) hearing is not

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 prosecutorial

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]

proceedings even though grounds for their commencement may exist"); see

also Cabasug v. INS, 847 F.2d 1321, 1324 (9th Cir. 1988). Further,

Camacho-Bordes could have sought cancellation of the deportation

proceedings as improvidently begun, pursuant to 8 C.F.R. § 242.7. See

Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir. 1977); Matter of Wong,

13 I. & N. Dec. 701, 703 (1971) ("enforcement officials of the Immigration

and
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Naturalization Service, as a matter of prosecutive judgment, may move . . .

for a termination 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-Bordes

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 by

Camacho-Bordes, it would draft a written recommendation against his

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 guilty plea on this ground.

B.

Camacho-Bordes next contends that he understood that, by entering the

plea agreement, he would not be deported. This would be an unfulfillable

promise, because the United States Attorney's Office cannot dictate the

outcome of a deportation 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 the

government. The government explicitly promised to recommend against

deportation to the INS. No more was promised; no outcome was assured.

Camacho-Bordes himself admitted that he received no promises other than the

writing of the letter in exchange for his plea. Tr. at 6. Given the

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.
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C.

Finally, Camacho-Bordes contends that the government breached the

plea agreement when the 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 supporting deportation. The district court apparently

assumed that the plea agreement's reference to "Government" does include

the INS, and it thereby concluded that the government acted in bad faith.

We disagree. The plea agreement did not purport to bind the INS, nor

did it bind any government entity other than the United States Attorney's

Office. In Margalli-Olvera, supra, the panel in that case, in construing

the "United States" to include the INS, specifically distinguished that

conclusion from the facts 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 applies

only to the United States Attorney's Office does not bind the

INS. . . . The unambiguous terms of the Camacho-Bordes plea

agreement specifically obligated the United States Attorney's

Office to recommend to the INS that Camacho-Bordes not be

deported. . . . The obligation in Camacho-Bordes involves

intragovernmental communication between two unambiguously

identified agencies.

Margalli-Olvera, 43 F.3d at 351. We agree with this analysis. The plea

agreement states that "the Government agrees . . . to make a written

recommendation against deportation to the INS." Tr. at 3. 
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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 noted that

"[a]lthough 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 the

recommending--the U.S. Attorney--and who is doing the considering--the INS.

Because the INS is free to reject the "Government's" recommendation,

construing the plea agreement to bind the INS would make no sense. Because

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 the 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 the

district court is reversed.

LAY, dissenting.

In 1985, Carlos Camacho-Bordes entered a guilty plea to a drug

trafficking offense pursuant to a plea agreement. The district court, the

Honorable Paul A. Magnuson, presiding, granted Camacho-Bordes's motion to

withdraw his guilty plea, finding that the government failed to fulfill its

plea agreement and exhibited bad faith by deporting Camacho-Bordes without

giving him the opportunity to present the government's recommendation

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)).

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The record shows that Camacho-Bordes's sole purpose in entering into

the plea bargain with the government was to ameliorate the negative

immigration consequences that would flow from his conviction, including the

burdens that deportation would place on his U.S. citizen spouse and their

four U.S. citizen children. The plea bargain was induced by the

government's promise to recommend against deportation upon his request.1

In the context of this case, the government, at least in my judgment

and the judgment of the district court, has attempted to play fast and

loose with the petitioner. It is true, as the majority finds, that the

plea agreement did not expressly provide that the government's

recommendation was to be made at a § 212(c) hearing for discretionary

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 deportation

proceedings, Camacho-Bordes conceded deportability, but sought § 212(c)

2

relief. At that time, discretionary relief under § 212(c) provided the

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.

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deportation.

The government's reliance on the INS's ability to stop the

deportation proceedings in the exercise of prosecutorial discretion is

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 requirement of informed decision-making in the exercise of that

discretion. The government'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 prosecuting

Camacho-Bordes actually knew that he would be ineligible for § 212(c)

relief, the prevailing law in 1985 was sufficiently well-settled that the

U.S. Attorney should have known that Camacho-Bordes would be ineligible for

§ 212(c) relief until November 13, 1990--seven years after he became a

lawful permanent resident on the basis 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)).

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the prosecutor nor the court nor defense counsel, however, informed

Camacho-Bordes that under existing law in 1985, he would not be eligible

for discretionary relief from an order of deportation unless the order

occurred after November 13, 1990. In such circumstances, the government's 4

promise was illusory and constituted a false inducement for Camacho-Bordes

to enter his guilty plea.

In Mabry v. Johnson, 467 U.S. 504 (1984), the Supreme Court

explained:

"[A] plea of guilty entered by one fully aware of the direct

consequences, including the actual value of any commitments

made to him by the court, prosecutor, or his own counsel, must

stand unless induced by threats (or promises to discontinue

improper harassment), misrepresentation (including unfulfilled

or unfulfillable promises), 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 original 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.

Given the development that he was not eligible for discretionary relief

under § 212(c), without which he had no opportunity for a hearing to

develop an administrative record demonstrating equitable factors in his

favor, it is clear that he was not fully and fairly apprised of the

illusory nature of the government's promise to make a written
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recommendation to the INS against his deportation.

Like the district court, I also find that the government exhibited

bad faith by allowing the deportation of Camacho-Bordes that mooted his

appeal seeking a § 212(c) hearing. Camacho-Bordes sought a stay of his

deportation to allow this court to hear his appeal from the order of

deportation. The Department of Justice, representing 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 deport 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 for

Camacho-Bordes to present the government's recommendation against

deportation. 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 defendant 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

justice' 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

purpose in entering the plea bargain was to lessen the chance of his

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 thereby contest the government's right of deportation. This is a

miscarriage of justice. Accordingly, I would affirm the district court's

judgment allowing Camacho-Bordes to withdraw his guilty plea.
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A true copy.

Attest:

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