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
