Monday, October 8, 2012

Issues of Fundamental Fairness at Stake in Moncrieffe v. Holder By Jordan Wells

Moncrieffe v. Holder is cast as a statutory interpretation case, with the petitioner arguing that immigration adjudicators should stick to the well-established “categorical approach,” and the government defending a new mode of interpretation that sets up mini-trials to go beyond the fact of conviction and explore a noncitizen’s particular conduct. The mode of inquiry approved by the Court will determine when a noncitizen’s conviction is to be classified as a “drug trafficking aggravated felony”—a label leading to severe immigration consequences, including mandatory deportation. Lurking in the background of the parties’ discussion of statutory construction are issues of fundamental fairness.

Notice and effective assistance of counsel are key in this case. The categorical approach offers predictive value by creating uniformity in immigration adjudications. It thus effectuates the Court’s recognition in Padilla v. Kentucky of the Sixth Amendment right to be informed of a conviction’s immigration consequences. An informed agreement that serves the interests of both defendant and prosecutor is reached during the criminal proceeding, when the defendant has the aid of counsel—not during the immigration proceeding, when (potentially many years on) the person may be detained and without access to counsel or to newly relevant evidence. By contrast, the government’s proposed approach undermines Padilla by turning immigration consequences into a guessing game: There is no way to know whether a later immigration adjudication may breathe new significance into aspects of the criminal record that were inconsequential—and thus uncontested—at the time of the criminal proceeding. It seems likely, moreover, that evidence introduced during the criminal proceeding to contest such inconsequential allegations will be excluded as irrelevant. Even were states to allow the introduction of such evidence going forward, that would provide little solace to longtime residents with past convictions, if the government’s proposed approach is applied retroactively.*

Proportionality is also key. The government’s approach equates minor state offenses that typically carry sentences of probation or small fines with a serious federal felony that carries up to 5 years in prison and a $250,000 fine. This mismatch strips the Attorney General of his discretion to cancel the deportation of longtime permanent residents, regardless of their equities. The Court recognized in Carachuri-Rosendo and Leocal that “aggravated felony” is commonly understood to denote a very serious crime. The statutes that will be affected by the outcome of this case are among the lowest level state drug offenses. Many, including the Georgia statute under which Moncrieffe was convicted, criminalize the mere social sharing of marijuana. These low-level convictions are routinely sustained irrespective of whether money changed hands. See, e.g., People v. Starling, 650 N.E.2d 387 (1995). From 2005 to 2011, in New York alone there were over 20,000 convictions under the relevant statute. About 75 percent resulted in sentences involving no jail time, while the other 25 percent typically resulted in very brief jail sentences. States like New York thus seeks to dispense penalties that are proportional to the gravity of the offense. Mandatory deportation is drastic consequence that upends this balance. The significance of this point is driven home by two cases described in an amicus brief to which my classmate Pierce Suen and I contributed. In the first, an LPR originally admitted as a refugee pled guilty in 2004 to conspiracy to commit misdemeanor “sale, gift, distribution, or possession with intent to sell, give, or distribute” less than one-half ounce of marijuana. A Virginia court handed down a twelve-month suspended sentence and placed him on probation. Six years later, DHS charged him as a “drug trafficking aggravated felon,” and he was removed to Vietnam. Contrast that with the following case: An LPR admitted in 1971 at the age of three was convicted twice in 1986 under the New York statute referenced alongside the statistics above. Twenty-five years later, DHS sought his deportation. Indeed, he was deportable. The question—the same one presented for review on Wednesday—was whether the Immigration Judge should apply the categorical approach (and thereby retain the discretion to cancel his deportation). The IJ did so, and finding that the man’s convictions “[did] not outweigh the many positive factors in his case, such as his extremely long residence, strong family ties, and the serious hardship he will face if deported to Haiti,” held that he “deserve[d] a second chance to remain in the U.S.”

At oral argument on Wednesday, the Court will be most interested in the parties’ views of statutory interpretation. In addition, however, the Justices will likely have in mind the rationales of fundamental fairness that have long underlain the categorical approach.

Jordan Wells


*   Later in the term, in Chaidez v. United States, the Court will decide whether Padilla’s holding applies retroactively. Assuming it does, however, most noncitizens in Moncrieffe’s position still would not be able to obtain post-conviction relief to correct stray, nonessential aspects of the record.

October 8, 2012 in Current Affairs | Permalink | TrackBack (0)

Brewer Falsely Attributes Agent's Death to Border Security Failure

Luke Witman writes for

Today, friends and family laid to rest slain U.S. Customs and Border Patrol agent Nicholas Ivie, who was tragically killed last week while on duty outside of Bisbee, Ariz. Ivie’s death was the result of a critical and still not entirely understood misstep on the agent’s part, but nonetheless, the tragedy has become a political rallying point for those campaigning for increased security at the Arizona-Sonora border.

On October 2, Ivie and another agent responded to an activated sensor in an area of dense vegetation in rural Cochise County. Apparently unbeknownst to Ivie, two other agents were already in the immediate vicinity of the sensor. It is unclear what caused him to act in this way, but Ivie fired shots at the other CBP agents, unaware that he was firing at fellow CBP officers. Ivie wounded one of the other agents, before she or he fired back, killing him. Nobody outside of the four CBP agents was involved in the incident that precipitated Ivie’s death.

The heartbreaking shooting death of Nicholas Ivie highlights the dangerous nature of the job that CBP agents have, patrolling rugged and isolated stretches of desert, often in the dark. However, some in Arizona have used this tragedy to highlight another, somewhat more nebulous threat to the state: the perceived dangers of encroaching Mexican drug cartels.

Immediately following the announcement of Ivie’s death, Ariz. Gov. Jan Brewer released a statement. It began by simply offering condolences to the slain agent’s family. But she then immediately seized on the death as a platform from which to launch into her political criticism of Pres. Obama and his stance on border security. “This ought not only be a day of tears. There should be anger, too,” wrote Brewer, “ Righteous anger…at the federal failure and political stalemate that has left our border unsecured and our Border Patrol in harm’s way.” Without proper knowledge of the precise circumstances surrounding Ivie’s death, Brewer seemed to automatically assume that his slaying was the result of Mexican criminals illegally filtering across the border. Read more...


October 8, 2012 | Permalink | TrackBack (0)

Argument Preview: The “War on Drugs” Meets Immigration Law (Again) in Moncrieffe v. Holder

Photo courtesy of Wikipedia

Lyle Denniston has posted an argument preview on SCOTUSblog for Moncrieffe v. Holder, the case involving removal for a criminal conviction involving a few grams of marajuana.  Not surprisingly, I like my preview better.  You be the judge.

The case will be argued before the Court on Wednesday, October 10, the same day as the arguments in the affirmative action case of Fisher v. University of Texas.


October 8, 2012 in Current Affairs | Permalink | TrackBack (0)

Jose Vargas Arrested but Won't Be Deported

From the Associated Press:

Immigration authorities said Monday they won’t take action against a Pulitzer Prize-winning journalist who was arrested in Minnesota for driving without a valid license.

Jose Antonio Vargas attracted national attention last year when he revealed that he’s an undocumented immigrant. He was scheduled to speak at Carleton College in Northfield last Friday but never made it.

When a state trooper stopped him in Minneapolis for driving with headphones on, Vargas produced a canceled Washington state driver’s license, said Lt. Eric Roeske, a spokesman for the Minnesota State Patrol.

“He did not have a valid license, and the identification he produced when the trooper ran a check on it indicated it was canceled due to some sort of fraudulent activity, so there was some doubt to his actual identity,” Roeske said.

Vargas was booked at the Hennepin County Jail and released on his own recognizance Friday pending a court appearance set for Oct. 18. The State Patrol contacted Immigration and Customs Enforcement, Roeske said, but the federal agency did not block his release.

An ICE spokeswoman in Washington said Monday that the agency intends to leave Vargas alone because he’s not a high priority.

“Mr. Vargas was not arrested by ICE nor did the agency issue a detainer,” Gillian Christensen said in an email statement. “ICE is focused on smart, effective immigration enforcement that prioritizes the removal of public safety threats, recent border crossers and egregious immigration law violators, such as those who have been previously removed from the United States.” Read more...


October 8, 2012 | Permalink | TrackBack (0)

Sunday, October 7, 2012

Boycott of Mi Pueblo Foods

From the Dignity Campaign:

Media Advisory:
Contact: Eriberto Fernandez / 650-219-5598
Launching of Boycott Against Mi Pueblo Foods for Implementing E-Verify
San Jose, CA - Mercados Mi Pueblo, the largest northern California Latino market, announced on August 16 that it began to implement the flawed and reportedly controversial federal program known as E-Verify which checks all prospective employees’ work eligibility status.  Vincent Alvarado, the company’s chief operating officer stated that the company can “now” concentrate on their “future growth opportunities”. Recently, the Los Angeles Times quoted Perla Rodriguez, the company public relations officer, alleging that Mi Pueblo “signed up for E-Verify at the recommendation of the U.S. Department of Homeland Security.” Also, company officials claimed they felt a “lot of pressure” from immigration officials to sign up and that this program would only apply to prospective employees.   However, an ICE official stated that the federal government “cannot force employers to participate [in this program].” Rocio Avila, a labor attorney, from the Women’s Employment Law Clinic in San Francisco recently stated that sometimes employers use E-Verify to discourage their employees from organizing labor unions. 
Early this week Juvenal Chavez, the founder of Mi Pueblo Foods, said to his employees that the Department of Homeland Security “is currently conducting an  I-9 audit at Mi Pueblo.”  This announcement has created confusion and concern among current workers, community and consumers. Members of the Justice for Mercado Workers’ Coalition are trying to verify whether or not Mr. Chavez’s assertion is true.  
Father Jon Pedigo from Our Lady of Guadalupe Church in San Jose, asserted that the “Mi Pueblo has a disturbing pattern involving the abuse of workers. This company is not here to serve the community, it is not a friend of the immigrant community, and it is, rather, an agitator in the immigrant community. By implementing E-Verify, Mi Pueblo is instilling fear and division among the people.” Rabbi Shelly Lewis from the East Palo Alto chapter of Bend the Arc, a workers rights’ advocacy group, stated that “Mi Pueblo is a successful company created by immigrants. A symbol of the opportunities we hope for in our country for all. However, we have seen in their stores a sourful record of mistreatment involving denial of fair wages, obstacles to organizing as workers, and finally the voluntary application of this E-Verify program.”
The boycott against M Pueblo will proceed as scheduled. It will begin on Monday, October 8, 2012 at 12:00 noon. The implementation of E-verify and the DHS I-9 audit potentially can affect hundreds if not thousands of workers and their families. The Justice for Mercado Workers’ Coalition demands that Mi Pueblo discontinue the use of E-Verify and to sign the Mercado Code of Conduct to ensure workers are treated fairly. Should Mi Pueblo refuse to sign the Mercado Code of Conduct and continue to use E-Verify after October 8, the indefinite boycott will commence.   
What:      Press Conference to Launch Boycott Against Mi Pueblo Foods
When:     Monday, October 8, 2012
Time:       10:30 a.m.
Where:   1720 Story Rd., San Jose CA 95122 (Corner of King & White Rd. next to Chase Bank)


October 7, 2012 | Permalink | TrackBack (0)