Showing posts with label immigration. Show all posts
Showing posts with label immigration. Show all posts

Thursday, January 12, 2012

Split Over the Right to Effective Counsel in Immigration Proceedings - Circuit Splits

This issue has been building for a while. In January 2009 - the waning days of the Bush administration -  AG Michael Mukasey in the Compean case repudiated the body of law that entitled aliens to relief if their attorney was shown to be incompetent. That measure was quickly renounced by Attorney General Holder.  But the bigger question is - if there is a right to due process in deportation (removal) proceedings does it extend to the right to effective assistance of counsel (which Congress has steadfastly refused to supply)? The Fifth Amendment (in the Scottsboro case - Powell v. Alabama) was the foundation for effective assistance cases before the 6th Amendment was recognized in Gideon v. Wainwright.
The Third Circuit has identified the circuit split (the 4th and 8th deny the right) as ripe for Supreme Court review. - GWC
Split Over the Right to Effective Counsel in Immigration Proceedings - Circuit Splits:
"Today’s post covers yet another circuit split over the applicability of the Due Process Clause. This time, however, the circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.
As the Third Circuit recently illustrated in the following footnote, this question has produced a circuit split that can only be described as "ripe for review":
Because immigration proceedings are civil rather than criminal in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Fadiga, 488 F.3d at 157 n.23. But we have recognized (along with a majority of our sister Courts of Appeals) that "[a] claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process." Id. at 155; see also Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).3"
h/t Legal Ethics Forum

Thursday, July 7, 2011

Priest’s Former Caseload Exposes Holes in Immigration Courts -

A priest with a heart of gold, but it's not enough. - GWC
Priest’s Former Caseload Exposes Holes in Immigration Courts -
"For more than three decades, Robert Vitaglione never turned down a client, representing thousands of immigrants in New York’s overburdened federal immigration courts. But he is not a lawyer. He is a Roman Catholic priest without formal legal training or supervision — and it showed.
Disheveled and disorganized, Father Vitaglione sometimes jeopardized cases with his erratic behavior, according to a federal finding. His legal briefs included a blizzard of fonts and asides — “Deportation = Death” was written in bold in one.

In May, court administrators had enough, barring Father Vitaglione from handling cases. But if anything, that only deepened the disarray. Lawyers and advocates had to hold emergency meetings to figure out how to pick up his pending cases, clean up bungled ones, and find representation for untold immigrants."

Monday, April 11, 2011

Ninth Circuit: Arizona Immigration law unconstitutional

The United States Court of Appeals for the Ninth Circuit has declared unconstitutional the key provisions of the Arizona law S.B. 1070, which provides, in part:

S.B. 1070, Arizona
“Any person who is arrested shall have the person’s immigration status determined before the person is released.”
Sec. 1. Intent
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.
The 2 -1 decision includes a bitter dissent by Judge Bea who ridicules the majority with the predictable reference to Humpty Dumpty "“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” 

Judge John Noonan, concurring,  makes the most powerful argument, to my mind.  Determining immigration status is a federal job.  Aliens are, by definition, the subjects or citizens of foreign countries.  The United States, not the states regulates our relations with foreign nations.  Federal preemption operates to supplant Arizona's own foreign policy, Noonan says:

The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field.
Arizona's drive them out, attrition through enforcement, etc. law certainly appeals to one sort of common sense.  Not the "common sense" that is most pronounced here - where the Statue of Liberty resides.  The dilemma of immigration is that we have the right and need to control our borders; but now that so many millions are here, with families of mixed native born and immigrant enmeshed in our society, sorting it out, rather than driving them out seems to me to be the common sense of it.

Monday, June 14, 2010

Effective counsel for deportees - NJ Law Journal Editorial Bd. Lauds 2d Circuit Cerna Decision

Effective Counsel for Immigrants

New Jersey Law Journal
June 11, 2010
For the second time this spring, a federal court has advanced the principle of effective assistance of counsel in deportation proceedings. Second Circuit Judge Robert Katzmann's opinion in Cerna v. United States , finding a potential due process violation in a lawyer's lax conduct, comes just four weeks after the U.S. Supreme Court, in Padilla v. United States, reversed a criminal conviction, noting the lawyer's neglect and emphasizing the "severity of deportation" — "the equivalent of banishment or exile."

The balance of the editorial is HERE

Friday, April 30, 2010

2d Circuit - Ineffective lawyering compels reversal of immigrant's illegal return conviction

Second Circuit Judge Robert Katzmann has again advanced the cause of effective assistance of counsel in deportation proceedings.  Cerna v. United States   is the second swallow this spring from federal courts. Just four weeks earlier Justice John Paul Stevens in a 7-2 decision, citing a lawyer’s neglect, reversed a criminal conviction, emphasizing the “severity of deportation"—“the equivalent of banishment or exile”.  Padilla v. United States (March 31 2010)
Ten year old Jose Cerna arrived from El Salvador in 1983.  He became a permanent resident alien but ran afoul of the drug laws early and repeatedly.  Yet he was a sympathetic enough character that in 1996 an Immigration Judge  found that though Cerna’s deportability had been established by clear and convincing evidence, Cerna was eligible for relief from deportation in the form of a waiver of inadmissibility.  His lawyer Maria Liz asked for 45 days to file the necessary administrative appeal.  She never did and she never told her client.  The removal order, unknown to her client, therefore became effective.
Years later more trouble with the law led to charges of illegal re-entry to the United States, a crime.  8 U.S.C. 1326.   Alvin K. Hellerstein, the sentencing judge, was conflicted.  He said to  Cerna “your case is a difficult one because you’re like two persons. You were one person at one time in your life and now you’re a different person in another part of your life.”.  Hellerstein was bound by § 1326 (d) which conditions relief on proof  that the alien “exhausted any administrative remedies that may have been available to seek relief against the order” as well as that “the order was fundamentally unfair”.  Since the IJ had himself suggested waiver of inadmissibility the exhaustion requirement was the only insuperable obstacle.
But excusing the exhaustion requirement is the kind of thing that Circuit Judges are better positioned to permit - in a “precedential opinion” .  Judge Katzmann has been a leading voice  to improve the quality of representation of immigrants.  The panel (with Hall and Rakoff joining) granted Cerna relief.  Saying the lawyer’s neglect excused the failure to exhaust administrative remedies they remanded for a finding of whether the order entered was “fundamentally unfair”, strongly suggesting that it was.
Declaring that immigrants are entitled to “effective assistance of counsel”, Katzmann grounded the Court's analysis in the due process clause of the Fifth Amendment.  Since the attorney’s error was in the "civil" removal proceeding, not the criminal prosecution, the Sixth Amendment did not apply.  The progeny of Gideon v. Wainwright root the concept of “effective assistance of counsel”  in the fair trial protections of the Sixth Amendment.  But  its antecedents are in the Fifth Amendment.  The Supreme Court, in the 1932 “Scottsboro Boys” case Powell v Alabama, grounded its decision in the due process clause.  The seven African American men, accused and convicted of capital rape, had been represented by a lawyer appointed by the court the morning the trial began - six days after the alleged offenses. 
Now  the concept as well as the remedy have migrated to immigration proceedings - where a lawyer’s failure has long been grounds for reconsideration of a deportation order. Matter of Lozada, 19 I & N Dec. 637 (BIA 1988).  In Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) Judge Katzmann reviewed the substantial body of law finding that due process requires fairness in a removal proceeding.  Last year Attorney General Holder reversed  Attorney General Michael Mukasey’s repudiation of a due process defense for aliens facing deportation.
In 1984 the Supreme Court in Strickland v. Washington 466 U.S. 668,  found that an ineffective assistance claim required proof of prejudice - that “but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. ”  That standard too has migrated into the formally civil immigration proceeding context .  United States v. Copeland, 376 F.3d 61, 73 (2d Cir. 2004) held that prejudice “is shown where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the (removal) proceeding would have been different.”
Although we are a long way from an immigrant’s version of Gideon v. Wainwright, as the alarm felt by Latin citizens of Arizona attests, the Second Circuit’s ruling reminds us that as a nation we are of two minds and that the forgiving and embracing side has forceful and effective judicial allies.

UPDATE:  The New Jersey Law Journal Editorial Board lauded Judge Katzmann's  opinion in Cerna HERE
Image: Judges Katzmann, Sonia Sotomayor, and Damon Keith at a Second Circuit tribute to the civil rights movment

Friday, April 2, 2010

Glad to be wrong: Supreme Court rules immigrant/deportee did not have effective assistance of counsel

Images: Justice Stevens - Cubs fan; Justice Anthony Kennedy

Back in September I predicted that the U.S. Supreme Court would reject the argument that Jose Padilla, an alien and Vietnam veteran,  received ineffective assistance of counsel because his lawyer improperly advised him  him that he would not face deportation if he pled guilty to a Kentucky drug distribution charge:

I predicted the answer would be 
"NO [Even if defendant's attorney failed to tell immigrant Vietnam Vet and marijuana dealer that he faced deportation as a consequence of his guilty plea, that failing was collateral to guilt or innocence and is not comprehended by the 6th Amendment right to effective assistance of counsel.]"
As it happened only Justice Antonin Scalia  (joined by Thomas, J.)  took that position:
"The Sixth Amendment guarantees the accused a lawyer“for his defense” against a “criminal prosecutio[n]”—not for sound advice about the collateral consequences of conviction. For that reason, and for the practical reasons set forth in Part I of JUSTICE ALITO’s concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea."
Instead the Court's opinion declared:
We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.
Justice John Paul (we're going to miss you) Stevens placed an affirmative duty on counsel - at least in clear cases like this - to advise a defendant of the consequences of a guilty plea.  He was joined by Justices Kennedy, Breyer, Ginsburg and Sotomayor.  In dramatic language the majority declares:
The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390–391 (1947)—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.
A concurring opinion by Justice Alito  (joined by C.J. Roberts) lamented that the "half-way" affirmative duty to warn of clear immigration consequences left a troublesome gray area.

The decision shows again the power of Justice Anthony Kennedy.  Had he joined Alito and Roberts we would have had a four justice plurality without an affirmative duty of counsel to give the client advice about the "risk of deportation".

Jack Chin and Margaret Love have posted this piece on SSRN explaining that the implications of the affirmative duty of a criminal defense lawyer to warn of the immigration consequences of a criminal conviction will inform plea bargaining and grounds in the 6th Amendment right to counsel a  duty to counsel criminal defendants regarding collateral consequences of conviction.

Friday, November 20, 2009

Fordham Law Review: Overcoming Barriers to Immigrant Representation

Fordham University | The Jesuit University of New York

America is torn between the Statue of Liberty - the icon of welcoming the immigrant - and the immigration raid, between "give me your tired and your poor" and the demand that "illegal immigrants" be barred from federally assisted health care.

A dramatic legal expression of the contradiction is the statute which recognizes a right to counsel for those facing deportation but requires that it be "at no expense to the Government". 8 U.S.C. 1362

R.P.C. 6.1 says that "every lawyer has a professional responsibility to render public interest legal service." The current issue of the Fordham Law Review explores, in the words of 2d Circuit Judge Robert A. Katzmann, "deepening the profession's commitment to the immigrant poor".


Vol. 78November 2009No. 2




Hon. Robert A. Katzmann




Sunday, November 8, 2009

`A drop in the bucket' but NJ Law Journal supports $2M increased funding for DOJ Legal Orientation Program

Sen. Charles Schumer (D.NY) has proposed an amendment to HR 2487 - the appropriation bill for the federal departments of Justice and Commerce. The measure would add $2 million for the Department of Justice's
Legal Orientation Program. Administered by the Vera Institute for Justice, the program offers four levels of service:

Group orientations by legal staff offer a broad overview of the immigration court process, relief from removal and ways to expedite removal.

Individual orientations allow participants to ask more detailed questions about the court process and specific forms of relief from removal.

Self-help workshops are small group classes that allow people who will represent themselves to prepare and practice with others pursuing similar defenses.

Referrals to pro bono attorneys are made for detainees who are unable to represent themselves or whose cases could especially benefit from legal representation.

The New Jersey Law Journal notes

Prof. Peter Markowitz reports in the Fordham Law Review , "One cannot exaggerate how overburdened and underresourced the immigration courts are and how pro se cases tap those scarce resources disproportionately. In fiscal year 2008, the nation's 214 immigration judges handled on average morre than 1,500 cases apiece. To assist them with this enormous docket, immigration judges shared, on average, one law clerk for every six judges. This flood makes a mockery of federal regulations ... which provide, 'The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter.'"

The New Jersey Law Journal Editorial Board, which supports direct federal funding of attorneys for aliens facing removal, nonetheless concludes:
Government spending on attorneys' representation of persons subject to removal is prohibited by federal statute, 8 U.S.C. 1362. But Sen. Charles Schumer, D-N.Y., has offered an amendment to HR 2487 — the appropriation bill for the Justice and Commerce Departments — that would increase LOP funding by $2 million. It may be a drop in the bucket, but every drop helps because the situation is dire. We urge Congress to support the Schumer amendment.

Tuesday, November 3, 2009

NY City Bar report: 39% of New York immigration detainees may have meritorious claims

The Justice Department is urging Congress to provide funds to support pro bono legal representation of persons facing deportation. Its Immigration Judges are overwhelmed by the burden of trying to provide a semblance of justice to pro se deportees.

But as the New Jersey Law Journal editorial board recently urged, a federally-funded "corps of competent lawyers" is needed to address the crisis of insufficient and incompetent representation. That requires Congress to amend federal law which bars such aid.

The aid measure is a $2,000,000 additional appropriation for the Executive Office of Immigration Review's "Legal Orientation" program which provides support (but not funds for direct representation) to pro bono representation of aliens in removal proceedings. The measure is contained in an amendment by Senator Charles Schumer to H.R. 2847, the appropriation bill for the federal departments of Justice and Commerce.

As the New York Times reports lack of representation, and overwhelmed judges are a big part of the picture.

Prof. Peter L. Markowitz of Cardozo Law School recently observed in his study BARRIERS TO REPRESENTATION FOR DETAINED IMMIGRANTS FACING DEPORTATION: VARICK STREET DETENTION FACILITY, A CASE STUDY, 78 Fordham Law Review 541 (2009):

One cannot exaggerate how overburdened and under-resourced the immigration courts are and how pro se cases tap those scarce resources disproportionately. In fiscal year 2008, the nation’s 214 immigration judges handled on average over 1500 cases apiece. To assist them with this enormous docket, immigration judges shared, on average, one law clerk for every six judges. This flood makes a mockery of federal regulations - 8 C.F.R. § 1240.11(a)(2) (2009) - which provides “The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter . . . .”).

The volunteer lawyers and law students of the City Bar's NYC Know Your Rights Project (a collaboration of the City Bar Justice Center, The Legal Aid Society and the American Immigration Lawyers Association, NYC Chapter) have issued a report which prompted the Times account. The executive summary follows:

The purpose of the collaboration is to increase access to legal advice and information for the detainees held at the Varick Facility by recruiting, training, and mentoring private law firm volunteers to staff a regularweekly clinic at the Immigration and Customs Enforcement detention facility in Lower Manhattan. The report is based on data on 158 detainees counseled at Varick by pro bono volunteers between December 11, 2008 through July 9, 2009.

We found 39.2% of the detainees had possible meritorious claims for relief from removal. The most common forms of relief were cancellation of removal; asylum; withholding of removal, and/or relief under the Convention Against Torture; nonimmigrant visas including U and S visas; 212(c) relief; and adjustment of status under 245(i) of the Immigration and Nationality Act.
In addition we found 10% of detainees we interviewed had been granted bond, but the amount was set so high that they could not raise the funds and thus remained housed in the facility. We also experienced detainees we met with being shipped to other parts of the country where access to counsel is even less likely than in the New York metropolitan area, sometimes
before the volunteer could finish researching the case. This report recommends that there be government-funded appointed counsel for all detained immigrants who cannot afford private counsel. Despite our best efforts and the diligence of our volunteers, we were only able to help 10 detainees a week at the NYC Know Your Rights Clinic.

Image: The New York Times - Varick Street detention center

Thursday, September 24, 2009

The crisis of unrepresented persons in removal proceedings

Cyrus Mehta, immigration attorney and Adjunct Professor at Brooklyn Law School, has summarized effectively HERE the crisis of representation of those in removal proceedings: a diffuse labyrinth that some 400,000 detainees will enter this year, some for long stays. It is a second, parallel prison system administered by the Department of Homeland Security.

The largest government agency, DHS bears a name with a Prussian ring. It is a bureaucratic monument to America's stunned, unifying, sometimes excessive, reactions to bolts from the blue, the brutal surprise attacks of September 11, 2001.

Of the 300,000 who now face deportation every year only 40% are represented by counsel. Of those detained only 10% are represented Mehta cites the powerful observation of Federal Appeals Judge Robert Katzmann in Aris v Mukasey, 517 F.3d 595 (2d Cir. 2008):

    The importance of quality representation is especially acute to immigrants, a vulnerable population who come to this country searching for a better life, and who often arrive unfamiliar with our language and culture, in economic deprivation and in fear. In immigration matters, so much is at stake – the right to remain in this country, to reunite a family, or to work.
    Katzmann, himself inspired by the experience of his grandparentst who fled the Nazis, addressed the City Bar, calling for a competent corps of volunteer attorneys has inspired a movement among lawyers to provide volunteer assistance to those who are unrepresented. The Varick Street Project was born, as recounted in the Times HERE.

Our borders cannot, of course, be open the way they were when my great grandparents arrived from Galway at Castle Clinton at The Battery. But the fact is that millions are here, their lives entwined with ours in blended families of immigrants and native born, trapped in the labyrinth that self-defense, aspiration, evasion, ineffective immigration controls, xenophobia, and harsh enforcement have created.

Fortunately the pro bono efforts of many lawyers makes a difference. But there is no just alternative to the politically unlikely demand we on the Editorial Board of New Jersey Law Journal have VOICED: create a federally-funded corps of competent attorneys to represent those facing removal from the United States.