United States v. Camacho-Bordes

___________

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.
 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.

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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 Camacho-
Bordes 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

1
Under § 212(c), "[a]liens lawfully admitted for permanent
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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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,2 pursuant to the All Writs Act, 28 U.S.C. § 1651, seeking to
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

2
We note that writs of error coram nobis were abolished in
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 Camacho-
Bordes may seek coram nobis relief. See id. at 505-06 n.4.

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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

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Olvera v. INS, 43 F.3d 345 (8th Cir. 1994),3 moved the district court4 to
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.

3
In Margalli-Olvera, Margalli-Olvera, a co-defendant of
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 Margalli-
Olvera 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.
4
Although (then) Chief Judge Diana Murphy had ruled on
Camacho-Bordes's earlier motions, given her subsequent elevation
to the Eighth Circuit, a new district judge was assigned to hear
this motion.

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 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,6 United States v.
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

5
The government's motion to supplement the record on appeal
is granted.
6
Both writs are used to challenge a conviction or sentence,
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).

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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

7
The government also contends that the arguments raised in
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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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.8 Plea agreements are "contractual in
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.

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

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

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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 Camacho-
Bordes would have a meaningful opportunity to present the government's
recommendation to the INS against his deportation. In his deportation
2
proceedings, Camacho-Bordes conceded deportability, but sought § 212(c)
relief. At that time, discretionary relief under § 212(c) provided the
only procedure by which he could obtain relief from

1
The plea agreement, which was presented orally in the
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."
2
Camacho-Bordes was without question deportable under the
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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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

3
As the Board of Immigration Appeals ("BIA") found in
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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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, 1990.4 In such circumstances, the government's
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

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

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