Wednesday, February 26, 2014
On Monday, twenty-six law professors from around the country urged the United States Supreme Court to grant certiorari to resolve crucial questions of how lower courts should analyze the retroactive application of immigration laws. The amicus brief was co-authored by the Immigration Law Clinic at UC Davis and Steven Hirsch at Keker & Van Nest, LLP, and joined by scholars in immigration, criminal justice, and statutory interpretation. The professors' brief explained to the Court how the current circuit split on who is eligible to receive discretionary relief from deportation has far reaching consequences in the practices of criminal and immigration law, as well as on the lives of thousands of immigrants with criminal records.
The underlying case, Acebo-Leyva v. Holder, 537 Fed. Appx. 875 (11th Cir. 2013), is on appeal from the Eleventh Circuit, where it was held that the petitioner failed to show “reliance” on the law at the time of his conviction because he chose to go to trial rather than accept a guilty plea. This rule contrasts sharply with precedents in the Third, Fifth, Eighth, and Ninth Circuits, which do not require any such showing of reliance. As a consequence, Mr. Acebo-Leyva was found to be ineligible for § 212(c) discretionary relief because the court found that the laws limiting this form of relief—and eventually eliminating it in 1996—could be retroactively applied to his 1980 conviction.
The brief illustrates how hinging antiretroactivity principles upon accepting guilty pleas undermines the critical right to jury trial and creates unsettled expectations for criminal-defense attorneys trying to meet their Sixth Amendment obligation to advise clients of potential immigration consequences. The professors urged the Court to establish uniformity and reaffirm a retroactivity analysis in which “the essential inquiry . . . is whether the new provision attaches new legal consequences to events completed before its enactment.” Vartelas v. Holder, 132 S. Ct. 1479, 1491 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 269–70 (1994)).
On the same day, and with analogous reasoning, former officials from the U.S. Departments of Justice and Homeland Security also filed an amicus brief petitioning for certiorari. The broad support for a uniform test to govern statutory retroactivity analysis make Acebo-Leyva v. Holder a case to watch.
Here is the amicus brief of the immigration law professors and an amicus brief of former DOJ and DHS officials.
David J. Jefferson, James Newman, Sarah Chi, and Zainab Shakoor