He further claimed that he believed the US government sanctioned his activities. After his guilty plea, he was granted asylum. In 1996, the INS notified Pena that it was revoking his asylum because of the conviction, and was placing him in deportation proceedings. Pena filed a writ of habeas corpus, seeking to have a court declare that his conviction could not be used to deport him. One of the requirements to a successful habeas corpus claim is that the petitioner must be in custody.
Custody can be actual or constructive.
Pena is not in the physical custody of the INS, nor is he yet subject to a final order of deportation, meaning he is not in constructive custody. Therefore, he cannot seek habeas corpus. However, the court found that it could view Pena s petition as an application for a writ of coram nobis, a special proceeding used to challenge the validity of a conviction after all other appeals have been exhausted. For a court to grant a writ of coram nobis, four conditions must be met. First, there must be no more usual remedy available.