"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.h/t Legal Ethics Forum
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"
Thursday, January 12, 2012
Thursday, July 7, 2011
"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
S.B. 1070, Arizona
“Any person who is arrested shall have the person’s immigration status determined before the person is released.”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.”
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.
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 Immigrants
The balance of the editorial is HERE
Friday, April 30, 2010
UPDATE: The New Jersey Law Journal Editorial Board lauded Judge Katzmann's opinion in Cerna HERE
Friday, April 2, 2010
Glad to be wrong: Supreme Court rules immigrant/deportee did not have effective assistance of counsel
"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.]"
"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.
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.
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
THE ROBERT L. LEVINE DISTINGUISHED LECTURE
OVERCOMING BARRIERS TO IMMIGRANT REPRESENTATION: EXPLORING SOLUTIONS
DEEPENING THE LEGAL PROFESSION’S PRO BONO COMMITMENT TO THE IMMIGRANT POOR
REPORT OF SUBCOMMITTEE 1: INCREASING PRO BONO ACTIVITY
REPORTS OF SUBCOMMITTEE 2: ENHANCING MECHANISMS FOR SERVICE DELIVERY
REPORT OF SUBCOMMITTEE 3: ADDRESSING INADEQUATE REPRESENTATION
Sunday, November 8, 2009
`A drop in the bucket' but NJ Law Journal supports $2M increased funding for DOJ Legal Orientation Program
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.'"
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
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 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, sometimesbefore 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 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.