Tuesday, September 18, 2012
The U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Collins (sitting by designation) joined by Judges Clifton and Murguia, today found in Montes-Lopez v. Holder that a noncitizen's right to counsel had been violated:
"Petitioner Mario Montes-Lopez, a native and citizen of El Salvador, petitions for review of an order of removal. Petitioner’s attorney failed to appear at a scheduled merits hearing before an Immigration Judge (“IJ”) because his license to practice law had been temporarily suspended. The Immigration Judge found that Petitioner may have learned of his attorney’s suspension as much as eleven days before the hearing, and concluded that Petitioner was not diligent in bringing his attorney’s suspension to the attention of the court. He denied Petitioner’s motion to continue, proceeded with the hearing with Petitioner unrepresented by counsel, and denied Petitioner’s application for asylum. We conclude that the Petitioner’s right to be represented in the proceedings by retained counsel, established under 8 U.S.C. § 1362 and related regulations, was violated. We also conclude that a petitioner so denied his right to counsel in an immigration proceeding is not required to demonstrate actual prejudice in order to obtain relief. We therefore grant the petition and remand for further proceedings."
Proceedings to remove noncitizens from the United States are classified as “civil” rather than “criminal.” Consequently, unlike a criminal defendant, a noncitizen in removal proceedings is not guaranteed legal representation. Recognizing the importance of counsel to noncitizens in removal proceedings, Congress created a qualified statutory right to counsel – which it characterizes as a “privilege” -- for removal proceedings, with a noncitizen allowed to secure representation by counsel “at no expense to the Government.” This as a practical matter means that a noncitizen can secure paid or pro bono representation but is not guaranteed an attorney by the government in a removal proceeding. Because of the obvious importance of the right to counsel to a noncitizen’s chance of prevailing in removal proceedings -- as well as teh high stakes of deporting a person from teh United States, regulations require immigration judges to advise the respondent in removal proceedings of the right to representation and “require the respondent to state then and there whether he or she desires representation.”
The courts have interpreted the statutory mandate as not requiring the government to provide counsel to noncitizens in removal proceedings. While the government is not required to provide counsel to noncitizens in removal proceedings, the U.S. government at various times as in Montes-Lopez v. Holder has been found by courts of effectively denying the qualified “privilege” of counsel of noncitizens through various practices.
Migration Policy Institute's Claire Bergeron and Faye Hipsman report on Democratic and Republican party platforms and their takes on immigration.
Tax liability for income earned overseas by Americans has been part of the US tax system since the federal income tax was first introduced in 1861. Since 2009, the United States has witnessed a rise in citizenship renunciation, especially among the affluent. Some see this as a barometer of the waning appeal of US citizenship, which has been and remains an aspirational goal for many around the world. However, it seems as though legislative and regulatory factors may be the more likely triggers for this new trend. For further analysis, click here.
The case involved a 1996 amendment to the Immigration and Nationality Act that prevents immigration judges from considering evidence of hardship in certain cases involving immigrants who were “admitted” to the United States as LPRs. For many LPRs facing removal, the ability to obtain such a hardship waivers is the only means to avoid separation from U.S. family members. In its amicus brief, the Council argued that the Board ignored the plain language of the statute and improperly conflated applicants who entered the country as LPRs with those who gained LPR status post-entry.
The beneficiary of today’s decision, Zaman Hanif, has resided in the United States for more than 25 years. The Department of Homeland Security initiated removal proceedings against him in 2009 based on a criminal conviction that resulted in four months’ incarceration. Hanif sought a waiver of inadmissibility on account of the hardship his removal would create for his immediate family members, including his wife, two elderly parents, and U.S. citizen children.
An immigration judge and the Board held that Hanif was ineligible to present evidence of hardship based on the Board’s decision in Matter of Koljenovic. In reversing the decision, the Third Circuit stated that it would “accord no deference to the BIA’s interpretation, which we find to be at odds with the wording and clear meaning of the statute.”
The case is Hanif v. Attorney General of the United States, No. 11-2643. Ryan Muennich of New York City represented the petitioner.
The appeal, with the U.S. Court of Appeals for the Ninth Circuit, was filed eight days after U.S. District Court Judge Susan Bolton denied a request to block the “show-me-your-papers” provision of the Arizona law, S.B. 1070, from going into effect later this month. The coalition today asked the Ninth Circuit to suspend the provision for the duration of its appeal.
The provision requires police to verify the citizenship or immigration status of people arrested, stopped or detained if there is a reasonable suspicion that they are in the country unlawfully. In June, the Supreme Court confirmed that three other key provisions of S.B. 1070 are unconstitutional, but declined to block section 2B, the “show me your papers” provision. Several other parts of SB 1070 are blocked by separate injunctions issued by the district court.
“The racial profiling provision threatens the civil rights of many communities of color in Arizona. For the growing Asian American and Pacific Islander community in Arizona, this law will cause irreparable harm to families and individuals, making communities less safe,” said Jessica Chia, staff attorney at the Asian American Justice Center. “AAJC will continue to fight against this discriminatory law until the court rightfully strikes it down.”
“The plaintiffs in this case have raised substantial claims against section 2B and the courts should not allow the provision to go into effect without even considering those claims, which is what will happen if the court of appeals denies the request we are filing today,” said Omar Jadwat, senior staff attorney with the ACLU Immigrants’ Rights Project. “As the history of this litigation shows, we are determined to fight SB 1070 and continue to work to preserve all Arizonans’ rights to be free from harassment and profiling.”
The coalition includes the ACLU, the ACLU of Arizona, NILC, MALDEF, the National Day Laborer Organizing Network, the Asian Pacific American Legal Center and the Asian American Justice Center, both members of the Asian American Center for Advancing Justice, as well as the NAACP. The law firms of Munger, Tolles & Olson LLP, Altshuler Berzon LLP, and the Ortega Law Firm are also acting as co-counsel in the case.
Monday, September 17, 2012
The Ninth Circuit En Banc Decides Key Issues About the
Categorical Approach; overturns Sandoval-Lua
Young v. Holder __F.3d__ (9th Cir. Sept. 17, 2012) (en banc) at http://www.ca9.uscourts.gov/datastore/opinions/2012/09/17/07-70949.pdf
This quick Advisory provides the headlines from an important Ninth Circuit case published today. Further advisories may provide a more in-depth analysis.
Cases discussed here include United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc), Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir. 2007) (and/or issue) and Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007) and Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84 (9th Cir. 2011) (burden of proof issue); see also Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), Shepard v. United States, 544 U.S. 13, 26 (2005).
In highly divided opinions, the Ninth Circuit held the following in Young v. Holder:
1. “Under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant’s conviction. In other words, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes a conviction under at least one, but not necessarily all, of those theories.”
2. “An alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony.”
3. “The evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal.”
The good news: “and” versus “or.” Where the statute is phrased in the disjunctive (“or”) but the complaint was phrased in the conjunctive (“and”), a plea to the complaint means that the defendant committed one, but not necessarily all, of the listed offenses. Snellenberger partially overturned, Malta-Espinoza affirmed.
Example: Mr Young was convicted under Cal. H&S C § 11352(a), a statute listing many offenses that states in the disjunctive that it is a crime to, e.g., sell, offer to sell, or transport a controlled substance. Some of the listed offenses are aggravated felonies (e.g. sale), and some are not (e.g., transport for personal use, offer to sell). Mr. Young pled guilty to a complaint that listed all these offenses in the conjunctive, e.g. sell and transport. The government argued that in so doing he pled guilty to all the offenses.
Held: The court disagreed with the government and found that the record shows that Mr. Young is guilty of at least one of these offenses but not all of them, and not which one. Partially overturned Snellenberger, upheld Malta-Espinoza, on the issue.
The bad news: The immigrant must prove, using only Shepard documents, that a conviction under a divisible statute is not a bar to relief such as cancellation; if the record is vague, the government wins. The court overturned the Sandoval-Lua/Rosas-Castaneda rule, and held that an immigrant who is applying for relief from removal has the burden of presenting evidence that proves that a conviction under a divisible statute is not for an offense that would bar relief. A vague record will not suffice. Further, the immigrant must prove this using only documents from the reviewable record of conviction, i.e. documents that meet the regular rules of the modified categorical approach under Shepard and Taylor. The dissenting judges pointed out that this may create insurmountable barriers for permanent resident who cannot obtain this evidence, but they did not prevail.
Example: Assume that Young was convicted under Cal. H&S C § 11352(a) of an offense involving cocaine base, and therefore is deportable under the controlled substance ground. The question is whether he is barred from applying for LPR cancellation because his conviction also is an aggravated felony. As discussed above, it is established that despite the fact that he pled to “sale and transportation for personal use,” courts must read that as “sale or transportation.” If the conviction was for sale it is an aggravated felony, if it is transportation it is not. The REAL ID statute and regulations provide that the immigrant generally has the burden of proving eligibility for relief from removal, but how does this work when the potential bar to relief is a conviction under a divisible statute?
Under Sandoval-Lua and cases following, the Ninth Circuit had held that because of the particular nature of the categorical approach, an immigrant in Young’s position would meet the burden by producing an inconclusive record of conviction. The current record – showing he pled to “transportation or sale” – would be enough to establish eligibility for relief such as cancellation.
Today’s en banc decision in Young overturned that rule. Under this decision Young must prove by clear and convincing evidence that the conviction was for transportation rather than sale. To prove it he is limited to the regular Shepard documents acceptable under the modified categorical approach, e.g., a plea transcript, written plea agreement, charging paper with proof that he pled to a particular charge, or other evidence from the reviewable record of conviction.
If the question is whether the immigrant is deportable, the burden is reversed. A vague record of conviction under a divisible statute does mean that the immigrant wins, because the government has the burden of proving deportability.
Possible good news. The BIA currently is asserting that the categorical approach does not fully apply in immigration proceedings; rather, some “categorical approach lite” will apply. See, e.g., Matter of Lanferman, supra. While further analysis is required, this decision might provide yet more evidence that the Ninth Circuit disagrees with this premise. It is possible that this issue would be addressed in Deschamps v. United States, currently pending at the U.S. Supreme Court.
For many aspiring immigrants, achieving citizenship means full participation in civic life—and that means the right to vote. Every year, thousands of immigrants become naturalized U.S. citizens and exercise their new right. In the 2010 national elections, naturalized citizens comprised 6.4% of all voters. The voter registration rate among immigrants as a whole has risen since 2000. Just as importantly, a growing number of U.S.-born children of immigrants are now coming of age and becoming voters.
However, the full potential of the immigrant vote has not been reached. There are more than eight million legal immigrants in the United States who are eligible to naturalize but have not yet done so. The latent electoral power of these voters-in-waiting is enormous. In many parts of the country their votes could potentially swing elections. As described in a series of Immigration Impact blog posts by Rob Paral, there are numerous counties across the country where the number of Legal Permanent Residents (LPRs) who have arrived since 1985 exceeds the margin of victory in the Obama-McCain election. Moreover, the voter rolls of many counties would grow dramatically if LPRs who are eligible to naturalize actually did so and registered to vote. Although this could not happen in time for the 2012 election cycle, it could make a difference in future elections.
To view the data, see Citizenship Day 2012: Realizing the Potential of the Immigrant Vote (IPC Fact Check, September 17, 2012).
Sunday, September 16, 2012
Some states, such as Oregon and Georgia, have announced that they will grant driving privileges to those eligible for the new (DACA) program. Others, such as Arizona and Mississippi, have vowed to deny them.
California legislators this month approved a bill that would allow an estimated 450,000 eligible young immigrants in the state to use the federal work permits at the Department of Motor Vehicles as proof of lawful presence in the country. The bill is now headed to the governor. Read more...
The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress.
The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines. The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.
To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012. Any late submissions will be considered on a space available basis only.
For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers. To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at firstname.lastname@example.org.
In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools. If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at email@example.com.
For more information about CSLSA, visit its website.