Criminal Defense Counsel has a Sixth Amendment obligation to inform a defendant about immigration consequences or to advise when consequences are clear

The first step has been taken to equate deportation with "punishment". If "deportation is an integral part—indeed, sometimes the most important part -- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes" then, doesn't the Constitution protect a person facing deportation? And in what ways? And does it matter whether the Respondent is an LPR with criminal convictions or an EWI with no crimes, but also no legal right to be here. In other words, is deportation a "penalty" for everyone? Has deportation moved from being a "collateral" (civil) consequence like loss of state license eligibility to a more integral consequence? If deportation is a penalty, are indigent noncitizens now entitled to appointed counsel in immigration proceedings?

Note: The Board of Immigration Appeals (BIA) has previously held that where a conviction is vacated based solely on rehabilitation or hardship rather than due to a substantive or procedural defect in the underlying criminal proceeding, the alien remains convicted for purposes of immigration law. It further found that a conviction vacated for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes. Thus, convictions overturned under this holding in Padilla will likely not count as a conviction for immigration purposes in most jurisdictions. The 5th Circuit has amended its position with regards to its treatment of vacated convictions and follow the BIA's Matter of Pickering. A conviction vacated on the merits is no longer a conviction for immigration purposes. Decision can be read here:
http://www.ca5.uscourts.gov/opinions/pub/03/03-60842-CV0.wpd.pdf

Padilla v. Kentucky, 130 S. Ct. 1473 (2010): "Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6".

(“[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes. . . . These changes to our immigration law have dramatically raised the stakes of a noncitizen‟s criminal conviction . . . [and] confirm our view that, as a matter of federal law, deportation is an integral part – indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”) (internal punctuation and citation omitted); see also id. at 1481-82 (because deportation, although civil in nature, is a “particularly severe penalty,” is “intimately related to the criminal process,” and is automatic for a broad class of offenders, it is “uniquely difficult to classify as either a direct or a collateral consequence of conviction); see also id. at 1486 (“[C]ounsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”).

"Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Pp. 7–9".

"Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18".

Justice John Paul Stevens delivered the opinion of the Court in which Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor joined. The majority opinion noted:

"In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill, 474 U. S., at 57; see also Richardson, 397 U. S., at 770-771. 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."

The Court noted in a footnote to this paragraph that “we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences.”

The majority opinion concluded that, “[t]o satisfy [our responsibility under the Constitution to ensure that no criminal defendant-whether a citizen or not--is left to the “mercies of incompetent counsel”], we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

Justice Samuel A. Alito, Jr. filed an opinion concurring in the judgment in which Chief Justice John G. Roberts, Jr. joined. In the concurring opinion, Justice Alito wrote.

In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney's expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client's determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel's duty to assist the client. Instead, an alien defendant's Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.

Justice Antonin Scalia filed a dissenting opinion in which Justice Clarence Thomas joined. He asserted that the Sixth Amendment does not guarantee sound advice on collateral consequences of a conviction. He further contended that affirmative misadvice about those consequences does not render an attorney's assistance in defending against the prosecution constitutionally inadequate.

"The Sixth Amendment guarantees adequate assistance of counsel in defending against a pending criminal prosecution. We should limit both the constitutional obligation to provide advice and the consequences of bad advice to that well defined area."

PADILLA v. KENTUCKY CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 08–651. Argued October 13, 2009—Decided March 31, 2010 http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

The petitioner, a native of Honduras who has lived in the U.S. for 40 years as a legal permanent resident, was arrested in Kentucky after it was discovered that he was transporting nearly 1,000 pounds of marijuana in his freight truck. He was indicted on various misdemeanor and felony charges, including trafficking in marijuana. The petitioner pled guilty to the drug charges reportedly after he questioned his defense attorney about immigration consequences and was told that he did not need to worry about immigration consequences since he had been in the U.S. for so long. He was sentenced to five years of incarceration followed by five years of probation.

After an immigration detainer was lodged against him, the petitioner moved to vacate the plea, asserting ineffective assistance of counsel because counsel misadvised him regarding the immigration consequences of the plea. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post conviction relief on the ground that the Sixth Amendment’s effective assistance-of counsel-guarantee does not protect defendants from erroneous deportation advice.The Hardin Circuit Court denied the motion, but, on appeal to the Kentucky Court of Appeals, the motion was granted, and the matter was remanded to the circuit court for an evidentiary hearing. The court of appeals distinguished Com. v. Fuartado, 170 S.W.3d 384 (Ky. 2005), in which the Kentucky Supreme Court determined that collateral consequences are outside the scope of effective representation of counsel under the Sixth Amendment on the ground that the petitioner sought advice from counsel and was given “gross misadvice” and such an affirmative act by counsel could constitute ineffective assistance.

Supreme Court Holds that Florida Battery Conviction Was Not “Violent Felony”

In a case with implications for aliens facing domestic violence deportation charges or with aggravated-felony crime of violence convictions, the U.S. Supreme Court in Johnson v. U.S., 2010 WL 693687, held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use ... of physical force against the person of another” and thus does not constitute a “violent felony” under 18 USCA § 924(e).

JOHNSON v. UNITED STATES ( No. 08-6925 )
528 F. 3d 1318, reversed and remanded.

Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony, in violation of 18 U. S. C.§922(g)(1). The Government sought an enhanced penalty under §924(e), which provides that a person who violates §922(g) and who “has three previous convictions” for “a violent felony” “committed on occasions different from one another” shall be imprisoned for a minimum of 15 years and a maximum of life. A “violent felony” is defined as “any crime by imprisonment for a term exceeding one year” that:

“(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

“(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.” §924(e)(2)(B).

Johnson’s indictment specified five prior felony convictions. The Government contended that three of those convictions—for aggravated battery and for burglary of a dwelling in October 1986, and for battery in May 2003—rendered Johnson eligible for sentencing under §924(e)(1). At the sentencing hearing, Johnson did not dispute that the two 1986 convictions were for “violent felon[ies],” but he objected to counting his 2003 battery conviction. That conviction was for simple battery murder Florida law, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but is a third-degree felony for a defendant who (like Johnson) has been convicted of battery (even simple battery) before, §784.03(2).

Under §784.03(1)(a), a battery occurs when a person either “1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to
another person.” Because the elements of the offense are disjunctive,the prosecution can prove a battery in one of three ways. State v. Hearns , 961 So. 2d 211, 218 (Fla. 2007). It can prove that the
defendant “[i]ntentionally caus[ed] bodily harm,” that he “intentionally str[uck]” the victim, or that he merely “[a]ctually and intentionally touche[d]” the victim.

Since nothing in the record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts, see Shepard v. United States , 544 U.S. 13, 26 (2005) (plurality opinion), his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another person constitutes the use of “physical force” within the meaning of m§924(e)(2)(B)(i). The District Court concluded that it does, and accordingly sentenced Johnson under §924(e)(1) to a prison term of 15 years and 5 months.

The Eleventh Circuit affirmed. 528 F. 3d 1318 (2008).

In a 7-2 decision authored by Justice Antonin Scalia and joined by Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, the Court first rejected the petitioner's argument that, in deciding whether any unwanted physical touching constitutes “physical force”m under 18 USCA § 924(e)(2)(B)(i), it was bound by the decision of the Florida Supreme Court in State v. Hearns, 961 So. 2d 211 (Fla. 2007), am case involving a Florida statute similar to the ACCA that held that, since § 784.03(1)(a) requires proof of only the slightest unwanted physical touch, “the use ... of physical force” was not an element of the offense. Rather, the Court said, the meaning of “physical force” in § 924(e)(2)(B)(i) is a question of federal law, not state law, and in answering that question the Court is not bound by a state court's interpretation of a similar or even identical state statute. However, in determining whether a felony conviction for battery under Fla. Stat. Ann. § 784.03(2) meets the definition of “violent felony” in 18 USCA §     924(e)(2)(B)(i), the Court said, it was bound by the Florida Supreme Court's interpretation of state law, including its determination of the elements of Fla. Stat. Ann. § 784.03(2).

Because § 924(e)(2)(B)(i) does not define “physical force,” the Court, in accord with its past precedent decisions, gave it its ordinary meaning. In this regard, the Court referred to Black's Law Dictionary,
which defines “force” as “[p]ower, violence, or pressure directed against a person or thing” and defines “physical force” as “[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim,” and found that these definitions suggested a degree of power that would not be satisfied by the merest touching. The Court rejected the government's contention that “force” as used in § 924(e)(2)(B)(i) has the more specialized legal meaning that the common law gave it when it defined the crime of battery as consisting of the intentional application of unlawful force against the person of another and defined “force” as meaning even the slightest offensive touching. In reaching this conclusion, the Court relied upon its decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), where it interpreted the statutory definition of “crime of violence” in 18 USCA § 16, a provision very similar to § 924(e)(2)(B)(i) in that it includes any felony offense which“has as an element the use ... of physical force against the person or property of another,” § 16(a). The Court there stated:

In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes.... 543 U.S. at 11, 125 S.Ct. 377.

The Court found it “clear that in the context of statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force--that is, force capable of causing physical pain or
injury to another person.” (Emphasis by the Court.)

The Court also found it significant that the meaning of “physical force” that the government sought to import into the meaning of “violent felony” is a meaning derived from a common-law misdemeanor and concluded that it is unlikely that Congress would select as a term of art defining “violent felony” a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor.

The majority found no merit to the dissent's contention that the term “force” in § 924(e)(2)(B)(i) cannot be read to require violent force because Congress specifically named “burglary” and “extortion” as “violent felon[ies]” in § 924(e)(2)(B)(ii), notwithstanding that those offenses can be committed without violence, noting that burglary and extortion are listed in § 924(e)(2)(B)(ii) as examples of felonies that “presen[t] a serious potential risk of physical injury to another,” not in § 924(e)(2)(B)(i) as felonies that have “as an element the use, attempted use, or threatened use of physical force.” Similarily, the court found no merit to the government's contention that, because Congress used the phrase “bodily injury” in connection with the phrase m“physical force” in § 922(f)(8)(C)((ii) (a provision forbidding the possession of firearms by a person subject to a court order explicitly
prohibiting the “use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury”), the absence of such language in §
924(e)(2)(B)(i) proves that the merest touch suffices. Rather, the Court found that specifying that “physical force” must rise to the level of bodily injury does not suggest that without the qualification “physical force” would consist of the merest touch. The Court also pointed out mthat this is not a case where Congress “include[d] particular language min one section of a statute but omit[ted] it in another section of the same Act” as § 922(g)(8)(C)(ii) was enacted in 1994--eight years after
enactment of the language in § 924(e)(2)(B)(i).

The Court also dismissed the government's contention that interpreting § 924(e)(2)(B)(i) to require violent force will undermine its ability to enforce the firearm disability in § 922(g)(9) for persons who previously have been convicted of a “misdemeanor crime of domestic violence,” which is defined to include certain misdemeanor offenses that have “as an element, the use or attempted use of physical force ... ,” §921(a)(33)(A)(ii), stating that it was interpreting the phrase “physical force” only in the context of a statutory definition of “violent felony” and was not deciding that the phrase has the same meaning in the context of defining a misdemeanor crime of domestic violence. The issue was not
before the Court, and the Court explicitly did not decide it.

Similarly the Court dismissed both (1) the government's concern that the Court's interpretation would make it more difficult to remove, pursuant to INA § 237(a)(2)(E) [8 USCA § 1227(a)(2)(E)], an alien convicted of a “crime of domestic violence,” which is defined to mean “any crime of violence (as defined in [18 USCA § 16])” committed by certain persons, including spouses, former spouses, and parents, where the alien is convicted of a battery under a statute, like Florida's, that does not require the use of violent physical force, and (2) the dissent's concern that, in states that have generic felony-battery statutes that cover both violent force and unwanted physical force, the Court's interpretation will render convictions under those statutes outside the scope of the ACCA. The majority found these arguments to exaggerate the effect of its decision since, when the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the Court's modified categorical approach, Nijhawan v. Holder, 129 S. Ct. 2294 (2009),  permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record--including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms. In this regard, the Court pointed out, the government has in the past obtained convictions under the ACCA in precisely this manner.

Finally, the Court declined to remand to the Eleventh Circuit for it to consider whether the petitioner's 2003 battery conviction is a “violent felony” within the meaning of the so-called “residual clause” in 18 USCA § 924(e)(2)(B)(ii). The Court found that (1) the government did not keep this option alive because it disclaimed at sentencing any reliance upon the residual clause, and (2) the parties briefed this issue to the Eleventh Circuit, which nonetheless reasoned that, if the petitioner's conviction under Fla. Stat. Ann. § 784.03(2) satisfied § 924(e)(2)(B)(i), then it was a predicate “violent felony” under § 924(e)(1), but “if not, then not.”

Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, dissented, arguing that the ACCA defines a “violent felony” to mean, among other things, “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another” and the classic definition of the crime of battery is the “intentional application of unlawful force against the person of another,” so that the crime of battery, as traditionally defined, falls squarely within the plain language of the ACCA. Justice Alito opined that the ACCA was meant to incorporate this traditional definition and that therefore the decision of the court of appeals should have been affirmed.

9th Cir. overturns Matter of Lettman: felony convictions before November 18, 1988 are not Aggravated Felonies

"We conclude that he may not be removed, because (1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and (2) neither Congress’s overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation."

Ledezma-Galicia entered the United States in 1979 and became a lawful permanent resident on February 12, 1985. In June 1987, Ledezma-Galicia molested a ten-year-old girl. He was subsequently charged with sodomy in the first degree, in violation of Or. Rev. Stat. § 163.405, and rape in the first degree, in violation of Or. Rev. Stat. § 163.375. In exchange for dismissal of the rape charge, Ledezma-Galicia pleaded guilty to the sodomy count and admitted in his guilty plea that he had sexual intercourse with a minor.  On September 16, 1988, he was sentenced to eight months in custody. 

In April of 2003, the Bureau of Immigration and Customs Enforcement charged Ledezma-Galicia with removability because of his 1988 conviction. See Ledezma-Galicia v. Unless otherwise stated, all references to the United States Code are to the 2000 edition. Ledezma-Galicia v. Holder 4995 Crawford, 294 F. Supp. 2d 1191, 1193 (D. Or. 2003) (summarizing the factual background). Under current law, sexual abuse of a minor is an aggravated felony, 8 U.S.C. § 1101(a)(43)(A), and a conviction for an aggravated felony renders an alien removable,2 8 U.S.C. § 1227(a)(2)(A)(iii).  But that was not the case when Ledezma-Galicia was convicted. See 8 U.S.C. § 1251(a) (1982) (listing grounds for deportation). To determine whether Ledezma-Galicia can now be deported because of his 1988 conviction requires a journey through the last twenty years of immigration law reform.

• Ledezma-Galicia v. Holder: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/29/03-73648.pdf
• Lettman: http://www.justice.gov/eoir/vll/intdec/vol22/3370.pdf 

2009 Country Reports on Human Rights Practices

The Department of State's (DOS') Bureau of Democracy, Human Rights, and Labor has released the Country Reports on Human Rights Practices for 2009. As with 2008, there are a total of 194 country reports.

Human Rights Abuses in Countries in Conflict

According to the information reported, “there still are an alarming number of reports of torture, extrajudicial killings, and other violations of universal human rights” occurring primarily in countries in which conflicts are occurring. The governments of Afghanistan, Burma, the Democratic Republic of the Congo (DRC), Iraq, Israel, Nigeria, Pakistan, Russia, Sri Lanka, and Sudan were all cited has having committed such acts. For example, in Nigeria, the report noted that, “[b]etween July 26 and July 29, police and militant members of Boko Haram, an extremist Islamic group, clashed violently in four northern states, resulting in the displacement of approximately 4,000 people and more than 700 deaths, although this figure is not definitive because quick burials in mass graves precluded an accurate count.” Also, although Pakistan's civilian authorities took some positive steps, significant human-rights challenges remain. Major problems included extrajudicial killings, torture, and disappearances as some 825 civilians were killed by militant forces, security operations to repel the militants from Malakand Division and parts of the FATA displaced almost three million persons at the peak of the crisis (although by year's end, approximately 1.66 million had returned to their home areas), and security forces allegedly committed 300 to 400 extrajudicial killings during counterinsurgency operations.

Restrictions on Freedom of Expression, Assembly, and Association (including nongovernmental organizations (NGOs))

Many governments continued to exert control over information that came into and was produced within their countries. This was accomplished by hindering the ability to organize in public, online, or through use of new technologies, by restricting the dissemination of information on the Internet, radio, or television or through print media, and constructing legal barriers that made it difficult for NGOs to establish themselves. According to the National Endowment for Democracy, 26 laws in 25 countries have been introduced or adopted since January 2008 that impede civil society.

The governments of Belarus, China, Colombia, Cuba, Iran, North Korea, Russia, Venezuela, Vietnam, and Uzbekistan were all mentioned in this category. China, for example, increased its efforts to monitor Internet use, control content, restrict information, block access to foreign and domestic Web sites, encourage self-censorship, and punish those who violated regulations. Further, in Colombia, while independent media were active and expressed a wide variety of views without restriction and all privately owned radio and television stations broadcast freely, members of illegal armed groups intimidated, threatened, kidnapped, or killed journalists, which, according to national and international NGOs, caused many to practice self-censorship; others, 171 to be specific, received protection from the government. In Venezuela, the government's harassment of Globovision, the largest private television network, included raiding the home of the company's president and publicly calling for the company's closure. At year's end, 32 radio stations and two television stations had been closed, and 29 other radio stations remained under threat of closure.

Discrimination Against and Harassment of Vulnerable Groups

Vulnerable groups, including racial, ethnic, and religious minorities, the disabled, women and children, migrant workers, and lesbian, gay, bisexual, and transgender individuals, were marginalized and targets of societal and/or government-sanctioned abuse. Italy, Hungary, Romania, Slovakia, and the Czech Republic were cited as seeing a rise in killings and incidents of violence against Roma, the largest and most vulnerable minority in Europe. Other countries noted for violations included China, Egypt, Iran, Malaysia, Saudi Arabia, Switzerland, and Uganda. Anti-Semitism continued to arise, and a spike in such activity followed the Gaza conflict in the winter of 2008-2009. Attacks on Christians rose in Egypt, and, in Uganda, a bill providing the death penalty for “aggravated homosexuality” and for homosexual “serial offenders” resulted in increased harassment and intimidation of lesbian, gay, bisexual, and transgendered persons during the year.

Well-founded fear of persecution that respondents would be subject to forced sterilization

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010)  U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Decided March 26, 2010

1. Whether an alien has presented sufficient evidence to establish a well-founded fear of persecution is a legal determination that is reviewed de novo by the Board of Immigration Appeals.
2. In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a “well-founded fear,” the Board has authority to give different weight to the evidence from that given by the Immigration Judge.
3. State Department reports on country conditions are highly probative evidence and are usually the best source of information on conditions in foreign nations.
4. The evidence presented by the respondents, considered in light of State Department country reports specific to Fujian Province, failed to establish a reasonable possibility that either respondent would be subject to forced sterilization due to having two children born in the United States or would face penalties or sanctions so severe that they would rise to the level of persecution.

BIA Holds that California Conviction for Infliction of Corporal Injury on Spouse Is Crime of Violence

The BIA held in Matter of Perez Ramirez, 25 I. & N. Dec. 203 (B.I.A. Mar. 17, 2010), that (1) where a criminal alien's sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime rather than punishment for a separate offense and (2) an alien's misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 USCA § 16(a).

The respondent, Antonio Perez Ramirez, is a native and citizen of Mexico and a lawful permanent resident of the U.S. On August 18, 2004, he was convicted pursuant to a nolo contendere plea in the Superior Court of California, County of Los Angeles, of the misdemeanor offense of inflicting corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code. The trial court did not impose a sentence for this offense but instead suspended imposition of a sentence and granted the respondent 36 months of “summary probation.” As a condition of this probation order, the trial court ordered the respondent to enroll in a 12-month batterer's counseling program. The respondent was also ordered not to annoy, harass, or molest anyone involved in the case and was served with a copy of a protective order. On July 24, 2007, the respondent stipulated in open court to a probation violation, and the trial court found that he had violated the terms of his probation. His probation was reinstated and continued on the same terms and conditions except that he was also ordered to serve 365 days in the Los Angeles County Jail for his offense. In a decision dated June 24, 2009, an immigration judge (IJ) found the respondent removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of a “crime of violence” for which the term of imprisonment is at least one year, which is an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. The respondent appealed to the BIA.

INA § 101(a)(43)(F) defines “aggravated felony” to include crimes of violence as defined in 18 USCA § 16(a) that resulted in a term of imprisonment of at least one year. 18 USCA § 16(a) in turn defines “crime of violence” to include either (1) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (2) an offense that is a felony that by its nature involves a substantial risk that physical force will be used against another in the course of its commission.

In an opinion written by Board Member Roger Pauley for the panel, which included Board Members Lauri S. Filppu and Patricia A. Cole, the Board rejected the respondent's arguments that he was not convicted of a crime of violence for which the term of imprisonment was at least one year because (1) the use, attempted use, or threatened use of physical force against the person of another, which is required by 18 USCA § 16(a), need not be shown for a conviction under Cal. Penal Code § 273.5(a) because, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another, thus precluding any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another and (2) under California law, the 365-day jail term imposed by the trial court on July 24, 2007, did not represent a sentence to a “term of imprisonment of at least one year” in connection with his underlying criminal conviction but instead was the result of his probation violation and constituted only a condition of his reinstated and modified order of probation.

The Board first held that under Supreme Court,  circuit court, including the Ninth Circuit, the circuit in which this case arose, and Board  precedent, the modification of the respondent's sentence following his probation violation, which resulted in a sentence of confinement for 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings rather than punishment for a separate offense. Thus, the respondent's 365-day term of imprisonment, imposed following modification of his probation, represented a one-year sentence for violating Cal. Penal Code § 273.5(a).

The Board then turned to the respondent's argument that his conviction was not a “crime of violence” under 18 USCA § 16 because the use, attempted use, or threatened use of physical force against the person of another, which 18 USCA § 16(a) requires, need not be shown for a conviction under Cal. Penal Code § 273.5(a), which provides that:
Any person who willfully inflicts upon a person who is his or her spouse ... corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year ...
Preliminarily, the Board found that, while this language would appear to only prescribe the allowable punishment for a felony, when it is read in conjunction with Cal. Penal Code § 17, it is clear that the provision in § 273.5(a) allowing for imprisonment in a county jail for not more than one year is the maximum possible punishment for a misdemeanor since under § 17 a felony is a crime that is punishable by death or imprisonment in the state prison and every other crime or public offense is a misdemeanor except those offenses classified as infractions. Therefore, the Board concluded that, because the respondent was ordered to serve 365 days in county jail, under California law, his offense would be excluded from the definition of a felony. Nevertheless, the Board pointed out, the respondent's misdemeanor may be an “aggravated felony” since he was sentenced to a term of imprisonment for at least one year. The Board cited U.S. v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002), which held that a crime may be classified as an aggravated felony under INA § 101(a)(43)(F) without regard to whether the crime is labeled a felony or a misdemeanor under state law when the crime is a “crime of violence” and the sentence imposed by the state court is one year.

The Board then addressed the question of whether the respondent's conviction was for a “crime of violence.” The Board rejected the respondent's contention that, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another and thus precludes any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another because California state court decisions have found that the term “willfully” as employed in § 273.5(a) means a purpose or willingness on the part of the actor to commit the act that results in corporal injury and have defined the term “inflicts” as used in § 273.5(a) as meaning that the corporal injury must result from a direct application of force by the perpetrator upon the victim. The Board further noted that § 273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Since a person cannot be convicted under § 273.5(a) without willfully and directly applying upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim, the Board was satisfied that the use of physical force against the person of another is an element of the offense within the meaning of 18 USCA § 16(a).

While § 7(1) provides that the term “willfully” does not require any intent to injure another, the Board concluded that the “volition” requirement implicit in the term “use” relates to the application of force against the victim and not to the resulting infliction of injury. Accordingly, the Board agreed with the IJ that the respondent's California conviction for inflicting corporal injury on a spouse qualifies categorically as a conviction for a “crime of violence” under 18 USCA § 16(a) and that, since his conviction resulted in the imposition of a term of imprisonment of one year following his violation of probation, he is removable as an alien convicted of a “crime of violence” aggravated-felony offense. Accordingly, the respondent's appeal was dismissed.

Establishing good cause for a continuance of proceedings-7th Cir. 2010

Juarez v. Holder, No. 08-1788: Denial of Motion to Reopen/Noncompliance with Biometrics Requirements

Juarez v. Holder (Sykes) 
Oral Argument | Full Text

Petition for review BIA's decision that petitioners' untimely applications and failure to provide the required biometrics meant they had abandoned their applications for relief is denied where: 1) the petitioners were given ample time to file their applications for relief and provide biometrics and did not have good cause for their delay; and 2) the IJ did not abuse his discretion in denying their motion for a continuance; and 3) IJ did not abuse his discretion in denying their requests for relief because of their failure to comply with these application prerequisites.

Bd. did not err in affirming IJ's removal order after IJ found that aliens' applications seeking relief from removal were untimely since they were filed 14 months after deadline set forth by IJ and lacked required set of fingerprints. Applicable regulatory scheme (8 CFR section 1003.31(c)) permits IJs to set time limits for filing applications seeking relief from removal, and instant failure by aliens to file timely applications or supply required fingerprints within deadline constituted waiver of applications. Fact that one alien's asylum application had been filed prior to April 1, 2005 effective date of instant regulations was irrelevant.

The petitioners are a mother and son from Guatemala who entered the U.S. illegally in 1989 and 1997, respectively. The mother filed for asylum after her arrival, but the immigration authorities did not adjudicate the application. Removal proceedings were commenced against both petitioners in 2004, and they conceded the charges. The lead respondent, Ms. Juarez, advised the IJ that she intended to file for cancellation of removal and to pursue her asylum application filed in 1990. Her son expressed an intention to file his own asylum application as he was not considered a derivative on his mother's case. The petitioners' attorney advised the IJ that he required 60 days to file the applications. The IJ approved this request and set the filing date for September 26, 2005, with the individual hearing date set for November 13, 2006. The IJ informed both petitioners that they needed to provide fingerprint and biographical information before the date of the next hearing in order to be eligible for relief. Indeed, the IJ addressed the petitioners individually and instructed them both to “pester your attorney” to get the fingerprints submitted on time. Their attorney acknowledged his familiarity with the biometrics procedures and said that he understood that the process could take some time. The applications were not filed within the time set by the IJ nor did the petitioners comply with the biometrics requirements. Less than a week before the November 2006 hearing, they filed motions asking for a continuance. Their attorney advised the IJ that the applications had been filed, but he had not yet received official confirmation in order to arrange the fingerprinting appointment. Counsel admitted that he had been unable to devote adequate time to preparing his clients' cases.

The IJ denied the continuance motion, reasoning that good cause had not been shown. The asylum application actually arrived at the court five days before the individual hearing date and the cancellation application arrived on the hearing date, but after the hearing had been concluded. As pointed out by the circuit court, the applications were filed 14 months late. Although conceding that good cause was absent, petitioners' counsel argued before the IJ that his clients should not be penalized for missing the court's deadlines when the immigration authorities had not acted on the lead petitioner's asylum application for more than a decade. The IJ agreed with DHS counsel that the petitioners had abandoned their claims by failing to submit fingerprints or timely filing their relief applications, and consequently ordered their removal. An appeal was filed with the BIA, but the petitioners' attorney failed to file a brief. Finding the IJ's decision to be valid, the Board dismissed the appeal.

The circuit court explained that, in light of the Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827 (2010) (holding that the courts have jurisdiction to review denials of motions to reopen), its review in regard to the denial of the continuance was plenary, thus retreating from its prior decision in Iqbal Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), which held that the court lacked jurisdiction over such a matter. The court cited to the applicable regulation--8 CFR § 1003.31(c)--authorizing IJ's to set and extend time limits for filing of applications and related documents, and providing that if an application is not filed within the time period it shall be deemed to be waived. It also cited to 8 CFR § 1003.47(c), providing that an alien's failure to comply with processing requirements for biometrics and other biographic information within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause. It also referred to 8 CFR § 1003.29, which provides that an IJ may grant a motion for continuance for good cause shown.

The court concluded that the IJ was well within his discretion in denying the petitioners' continuance motion and their requests for relief from removal as well. It rejected the petitioners' contention that 8 CFR § 1003.47 (the biometric regulation) is ultra vires, pointing out that by statute the Attorney General (AG) is prohibited from granting asylum to any applicant until his or her identity is checked against all appropriate records or databases to determine any ground on which the alien may be inadmissible or deportable from the U.S. or ineligible to apply for or be granted asylum, citing to INA § 208(d)(5)(A)(i) [8 USCA § 1158(d)(5)(A)(i)]. The court declared that the 60 days provided to file was “plenty of time.” The court also ruled that the government's delay in the matter was not a relevant factor, citing to Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (decision when to initiate removal proceedings is in the discretion of immigration authorities). The court observed that the petitioners had been represented by the same attorney throughout the proceedings so there was no claim for ineffective assistance of counsel; however, the court directed the court clerk to transmit a copy of the opinion to the Arkansas Committee on Professional Conduct and the Department of Justice's Executive Office for Immigration Review.

Health-Care Reform Act Implications for Alien

The new health-care reform act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 201), the Patient Protection and Affordable Care Act, has numerous implications for non-U.S. citizens.
Section 1312(f)(3) of the Act states:
(3) ACCESS LIMITED TO LAWFUL RESIDENTS.--If an individual is not, or is not reasonably expected to be for the entire period for which enrollment is sought, a citizen or national of the United States or an alien lawfully present in the United States, the individual shall not be treated as a qualified individual and may not be covered under a qualified health plan in the individual market that is offered through an Exchange.
Another provision limiting qualification only to U.S. citizens or lawfully present aliens is found in § 1331(e)(1)(B), which addresses individuals eligible for state-established basic health programs for low-income individuals not eligible for Medicaid. The provision states that an eligible individual is, among other things, someone:
whose household income exceeds 133 percent but does not exceed 200 percent of the poverty line for the size of the family involved, or, in the case of an alien lawfully present in the United States, whose income is not greater than 133 percent of the poverty line for the size of the family involved but who is not eligible for the Medicaid program under title XIX of the Social Security Act [FN1] by reason of such alien status.
In § 1401, the Act provides for refundable credits for certain purchasers of a qualified health-care plan by adding a new § 36B to Subpart C of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986. [FN2] With regard to non-U.S. citizens, that new section, in subsection (c), provides:
(B) SPECIAL RULE FOR CERTAIN INDIVIDUALS LAWFULLY PRESENT IN THE UNITED STATES.--If--
(i) a taxpayer has a household income which is not greater than 100 percent of an amount equal to the poverty line for a family of the size involved, and
(ii) the taxpayer is an alien lawfully present in the United States, but is not eligible for the Medicaid program under title XIX of the Social Security Act by reason of such alien status,
the taxpayer shall, for purposes of the credit under this section, be treated as an applicable taxpayer with a household income which is equal to 100 percent of the poverty line for a family of the size involved.
With regard to aliens not lawfully present in the U.S., new § 36B states the following:
(e) RULES FOR INDIVIDUALS NOT LAWFULLY PRESENT.--
(1) IN GENERAL.--If 1 or more individuals for whom a taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year (including the taxpayer or his spouse) are individuals who are not lawfully present--
(A) the aggregate amount of premiums otherwise taken into account under clauses (i) and (ii) of subsection (b)(2)(A) shall be reduced by the portion (if any) of such premiums which is attributable to such individuals, and
(B) for purposes of applying this section, the determination as to what percentage a taxpayer's household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:
(i) A method under which--
(I) the taxpayer's family size is determined by not taking such individuals into account, and
(II) the taxpayer's household income is equal to the product of the taxpayer's household income (determined without regard to this subsection) and a fraction--
(aa) the numerator of which is the poverty line for the taxpayer's family size determined after application of subclause (I), and
(bb) the denominator of which is the poverty line for the taxpayer's family size determined without regard to subclause (I).
(ii) A comparable method reaching the same result as the method under clause (i).
(2) LAWFULLY PRESENT.--For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the credit under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.
(3) SECRETARIAL AUTHORITY.--The Secretary of Health and Human Services, in consultation with the Secretary, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.
New § 36B is applicable to taxable years ending after December 31, 2013.
Section 1402 of the Act, which addresses a plan issuer's obligation to reduce the cost of the plan imposed on certain individuals who demonstrate to the government's satisfaction that the individual or family meet certain low-income criteria, excludes unlawfully present individuals from benefitting from this reduction in cost. In the case of a family in which one or more members are not lawfully present in the U.S., the Act provides calculations for determining whether the remaining family members are eligible for the reduced-cost plan. Section 1402(e) provides:
(e) RULES FOR INDIVIDUALS NOT LAWFULLY PRESENT.--
(1) IN GENERAL.--If an individual who is an eligible insured is not lawfully present--
(A) no cost-sharing reduction under this section shall apply with respect to the individual; and
(B) for purposes of applying this section, the determination as to what percentage a taxpayer's household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:
(i) A method under which--
(I) the taxpayer's family size is determined by not taking such individuals into account, and
(II) the taxpayer's household income is equal to the product of the taxpayer's household income (determined without regard to this subsection) and a fraction--
(aa) the numerator of which is the poverty line for the taxpayer's family size determined after application of subclause (I), and
(bb) the denominator of which is the poverty line for the taxpayer's family size determined without regard to subclause (I).
(ii) A comparable method reaching the same result as the method under clause (i).
(2) LAWFULLY PRESENT.--For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the cost-sharing reduction under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.
(3) SECRETARIAL AUTHORITY.--The Secretary, in consultation with the Secretary of the Treasury, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.
With regard to the procedures for establishing eligibility for exchange participation, premium tax credits and reduced cost-sharing, and individual responsibility exemptions, found in § 1411 of the Act, a declaration of citizenship or immigration status must be made:
(b) INFORMATION REQUIRED TO BE PROVIDED BY APPLICANTS.--
(2) CITIZENSHIP OR IMMIGRATION STATUS.--The following information shall be provided with respect to every enrollee:
(A) In the case of an enrollee whose eligibility is based on an attestation of citizenship of the enrollee, the enrollee's social security number.
(B) In the case of an individual whose eligibility is based on an attestation of the enrollee's immigration status, the enrollee's social security number (if applicable) and such identifying information with respect to the enrollee's immigration status as the Secretary, after consultation with the Secretary of Homeland Security, determines appropriate.
This information is subject to verification as provided in subsection (c) of the section:
(c) VERIFICATION OF INFORMATION CONTAINED IN RECORDS OF SPECIFIC FEDERAL OFFICIALS
(2) CITIZENSHIP OR IMMIGRATION STATUS.--
(A) COMMISSIONER OF SOCIAL SECURITY.--The Secretary shall submit to the Commissioner of Social Security the following information for a determination as to whether the information provided is consistent with the information in the records of the Commissioner:
(i) The name, date of birth, and social security number of each individual for whom such information was provided under subsection (b)(2).
(ii) The attestation of an individual that the individual is a citizen.
(B) SECRETARY OF HOMELAND SECURITY.--
(i) IN GENERAL.--In the case of an individual--
(I) who attests that the individual is an alien lawfully present in the United States; or
(II) who attests that the individual is a citizen but with respect to whom the Commissioner of Social Security has notified the Secretary under subsection (e)(3) that the attestation is inconsistent with information in the records maintained by the Commissioner;
the Secretary shall submit to the Secretary of Homeland Security the information described in clause (ii) for a determination as to whether the information provided is consistent with the information in the records of the Secretary of Homeland Security.
(ii) INFORMATION.--The information described in clause (ii) is the following:
(I) The name, date of birth, and any identifying information with respect to the individual's immigration status provided under subsection (b)(2).
(II) The attestation that the individual is an alien lawfully present in the United States or in the case of an individual described in clause (i)(II), the attestation that the individual is a citizen.
The Act, in § 1501, establishes new Chapter 48 to Subtitle D of the Internal Revenue Code of 1986. The new chapter mandates the maintenance of minimal essential coverage. Individuals who are not lawfully present in the U.S. are not considered applicable individuals and cannot obtain plans, and thus the requirement does not apply to them.

[FN1]. Act of Aug. 14, 1935, ch. 531, 49 Stat. 620 (codified as amended at 42 USCA §§ 301 to 1399). For a discussion of the Social Security Act as it pertains to aliens generally, see Allott, Social Security Issues in Immigration Practice, 91-10 Immigration Briefings 1 (Oct. 1991).

[FN2]. Pub. L. No. 99-514, 100 Stat. 2085 (Oct. 22, 1986).

2008 American Community Survey and Census Data on the Foreign Born by State

 While the immigrant population of the United States increased by 6.9 million between 2000 and 2008, the impact of this growth varied considerably from state to state in terms of population size and characteristics. To facilitate analysis of these differences, the interactive map below provides national and state-by-state data on immigrant populations from the 1990 and 2000 Decennial Censuses and the 2007 American Community Surveys (ACS). Click the desired state to generate fact sheets about the demographic & social, &education, workforce, and income & poverty characteristics.
A sampling of the types of data included in each of the four fact sheets for each state:

• Demographic and Social - (updated with 2008 data): top countries of birth, geographic mobility, children in immigrant families;
• Language and Education: - (updated with 2008 data) rates of limited English proficiency and levels of educational attainment in 1990, 2000, and 2006, rates of linguistic isolation in 2007;
• Workforce: the foreign-born share of the workforce, top occupations and industries;
• Income and Poverty: average incomes, income distributions, poverty rates.

State Rankings - (updated with 2008 data)

• Number of Foreign Born by State (1990, 2000, 2008)
• Percent Foreign Born by State (1990, 2000, 2008)
• Numeric Difference in the Foreign Born by State (1990, 2000, 2008)
• Percent Change in the Foreign Born by State (1990, 2000, 2008)

To view the 2000 version of the data tool, click here.
This data tool is a project of MPI's National Center on Immigrant Integration Policy. It was made possible with generous support from Carnegie Corporation of New York.

A postconviction sentence modification may be effective in avoiding a conviction for immigration purposes or to eliminate an aggravated-felony ground of deportability.

Where a criminal court vacated the 1-year prison sentence of an alien convicted of a theft offense and revised the sentence to 360 days of imprisonment, the alien does not have a conviction for an aggravated felony within the meaning of section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. V 1999). Matter of Song, 23 I. & N. Dec. 173 (BIA 2001). 

The Board gave effect to a sentence reduction and terminated removal proceedings for Min Song, an individual whose one-year sentence for theft was decreased to 360 days. The reduced sentence, the BIA ruled, effectively removed Song from the reach of provisions in the Immigration and Nationality Act relating to the definition of "aggravated felony."

Song, a native Korean who had been admitted to the U.S. as a lawful permanent resident in 1981, was convicted of theft and sentenced to a year in prison in the late 1980s. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the INA's definition of "aggravated felony" to include theft offenses for which the term of imprisonment is at least one year. Individuals found removable for aggravated felony convictions are also rendered ineligible for any relief from removal. Based on his theft conviction, Song was placed in removal proceedings and subsequently ordered removed by the immigration court.

On appeal, Song challenged the immigration court's finding that his aggravated felony conviction made him ineligible for relief under the INA. Prior to filing his appellate brief, Song applied for and obtained an order vacating and revising his previous sentence nunc pro tunc to 360 days. Nunc pro tunc orders are used by courts to revise prior judgments or orders in matters where the court originally had jurisdiction. The new order replaces the original and is considered to have the same status, notwithstanding the modification.

In his appellate brief, Song presented new evidence demonstrating that his criminal sentence had been reduced to 360 days. As Song's new conviction was for a term of less than one year, the BIA determined that he could no longer be considered an aggravated felon. In reaching its decision, the BIA relied on Matter of Martin, 18 Int. Dec. 226 (1982), in which it ruled that where an individual is resentenced for a crime, the new sentence determines whether or not he or she is deportable.

The BIA distinguished its ruling in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), which held that the IIRIRA provision defining "conviction" for immigration purposes precludes the BIA from giving effect to expungements or other post-conviction state rehabilitative orders. In this case the definition of "conviction" is not at issue; the sentence reduction did not eliminate the fact that there was a conviction, but rather changed the term of imprisonment such that the conviction falls outside the definition of an aggravated felony.

There are several different sentencing options which judges may exercise when sentencing someone for a criminal offense. These options can include a sentence to incarceration, deferred adjudication, probation, supervision, conditional discharge, and first-offender probation.

A deferred adjudication sentence is a form of judge-ordered supervision which permits a defendant to accept responsibility for the crime without suffering all of the potential consequences and liabilities from the entry of a formal conviction under state law. The judge defers final decision on the charge, places the person on probation, and sets conditions of probation which, if fulfilled, avoid a final conviction under state law.

Where a deferred adjudication statute requires a plea of guilty, a plea of nolo contendere (no contest), or an admission of sufficient facts to warrant a finding of guilt and some form of punishment is ordered (i.e., the program itself), such adjudication is considered a conviction for immigration purposes.

Imposition of court costs and surcharges qualifies as a penalty or punishment for immigration purposes under INA § 101(a)(48)(A)(ii). In Matter of Cabrera, the Board addressed the issue of whether the imposition of costs and surcharges following a plea in criminal proceedings constitutes a “penalty” or “punishment” and, therefore, a conviction under INA § 101(a)(48)(A)(ii).In that case, the noncitizen entered a plea of nolo contendere in Florida state court to the charge of possession of a controlled substance, and adjudication of guilt was withheld. Under Florida law, people who plead guilty or nolo contendere, including in cases where adjudication is withheld, can be assessed additional costs and surcharges. The noncitizen in this case was assessed $458 following his plea. The Board, in reaching its decision, reviewed federal and state case law which held that costs, surcharges and other assessments constitute a “penalty” or “punishment” within the criminal scheme. For these reasons, the Board held that the noncitizen was subject to removal as a result of a conviction of violating a law relating to controlled substances.

• Iqbal v. Bryson, 2009 WL 192505 (E.D. Va. 2009)(New York pretrial diversion adjudication not a conviction for immigration purposes where it does not require defendant to make a plea of guilty).
• Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004)In re Salazar-Regino, 23. Dec. 223, 2002 WL 339535 (B.I.A. 2002)In re Punu, 22 . Dec. 224, 1998 WL 546634 (B.I.A. 1998)
• Matter of Cabrera, 24 Dec. 459 (B.I.A. 2008)
• In re Song, 23 Dec. 173, 2001 WL 1030900 (B.I.A. 2001)
• In re Cota-Vargas, 23 Dec. 849, 2005 WL 3105750 (B.I.A. 2005)(Board gave effect to sentence reduction even where the sole purpose was to avoid immigration consequences, holding that, where a sentence was modified nunc pro tunc expressly to avoid deportation for an aggravated felony, the immigration court and the Board must recognize the modified sentence); In re Pickering, 23 Dec. 621, 2003 WL 21358480 (B.I.A. 2003)(distinguished).

Chicago Appleseed Fund For Justice- Immigration Court Reform

To the editor: A Policy Statement from Chicago Appleseed

Last year, Appleseed and the Chicago Appleseed Fund for Justice released a comprehensive report, "Assembly Line Injustice," outlining findings that American immigration courts regularly fall beneath basic standards of justice. The report compiled the reports of trained court-watchers as well as more than 100 interviews with individuals who are involved in immigration court on a day-to-day basis, including practitioners (pro bono and fee-charging), officials of nonprofit associations and professional organizations, academics and governmental players. The report offered 34 recommendations aimed at promoting accuracy, efficiency and legitimacy throughout the immigration court process.

Many of these recommendations are practical reforms that would help repair many of the problems cited in our report without dramatic overhaul of the entire system. Others involve more sweeping changes.

Moreover, Appleseed and Chicago Appleseed are not alone in calling for reform. The American Bar Association recently released its own report on the immigration court system, calling for new policies and practices. Many of these reforms overlap the recommendations found in "Assembly Line Injustice." It is clear that the immigration court system is in need of substantial, immediate change.

There are many fine immigration judges and government attorneys working in this underfunded but critically important judicial system. But we heard of too many cases in which judges engaged in verbal abuse, mocking a pro bono attorney for being a "New York big firm do-gooder," or yelling at an immigrant for not looking him in the eye, not understanding that eye contact was inappropriate in the immigrant's culture.

We heard repeatedly that training of immigration judges is inadequate. In one case, responding to an immigrant's claim that he faced persecution as a result of sexual orientation, a judge declared that the immigrant "didn't look gay" and denied asylum.

Professionalism is certainly not the only thing that is too often lacking in the immigration court system. More than 85 percent of those who enter removal proceedings require translation services that are too often inadequate. A large percentage of immigrants in removal proceedings appear without counsel. These individuals are not given the tools they need to navigate through a Byzantine court system, and are instead subjected to procedures that are dehumanizing and wasteful of taxpayer money. Where the Supreme Court itself said, "Justice must satisfy the appearance of justice," our immigration court system is widely recognized as ineffectual and unfair.

Many urge the restructuring of the immigration court as an Article I court to combat political bias. While independence as an Article 1 court can combat a number of the issues, more targeted actions are necessary in the meantime to restore legitimacy to the immigration court system.

In meetings with DOJ and DHS, Appleseed reviewed several in-the-trenches, practical reforms that would repair many of the problems cited in our research. It is particularly necessary to address inefficiencies that can, for example, lead to months-long stays at detention facilities when immigrants' removal proceedings drag on far longer than necessary. Detention can cost upward of $200 per day per detainee, totaling $2.4 billion annually for detention operations.

We review some of those recommendations here:

Reinforce professionalism standards for immigration judges. Situations in which judges bully immigrants and attorneys are unacceptable, and the judges' Code of Conduct must be updated and enforced. Regular, mandatory training sessions for judges will address issues of cultural competence and impartiality. In the case mentioned above where a judge ruled on the basis of sexual orientation stereotypes, training was provided by the court of appeals and the judge reconsidered his decision.

Hire more immigration judges and law clerks. Though DOJ has sworn in six immigration judges recently and claims to be in the process of hiring more, reducing each judge's caseload by only one case per day would require the hiring of nearly 60 more, plus a corresponding number of judicial clerks. Judges have less than two hours to review each case file, conduct a hearing, and render a decision. Even with regular training on professionalism and efficiency, this reality denies both judges and immigrants the right to a reasoned, accurate decision.

Reform the hiring process for judges and Board of Immigration Appeals members. This includes depoliticizing the hiring process, as well as broadening the candidate pool for immigration judges beyond its current "farm team" of Department of Homeland Security trial attorneys. Drawing from the ranks of experienced private attorneys and academics will balance what is currently a pool of judges predisposed to rule in favor of the government.

Improve translation services. In one asylum case, despite the prohibition on opining, an interpreter refused to translate an immigrant's claim that he had been attacked by anti-Semites in the Ukraine. The interpreter responded, "That sort of stuff doesn't happen in the Ukraine." Not only must certification standards be improved, DOJ must design complaint-tracking and removal procedures for interpreters. In addition, simultaneous translation of everything said in court, not only communication between judge and immigrant, should be mandated, such that immigrants may understand the context of questions asked.

Eliminate videoconferencing in merits hearings. In one case, a judge ruled that a client's story about physical abuse was not credible because she could not see the scars on the immigrant's dark skin on the small, dimly lit television screen. Though implemented in the name of efficiency, videoconferencing dehumanizes immigrants, denies them the right to confer privately with their lawyers, and undermines the ability of a judge to make credibility and demeanor judgments, which are especially important in immigration cases.

Improve document availability. An immigrant must submit a Freedom of Information Act request for his own records, though less than 1 percent of these requests are rejected by DOJ and DHS. This statistic reveals a process that consumes resources rather than one that enhances justice - again, costing taxpayers millions of dollars.

Ensure that trial attorneys are handling cases professionally and efficiently. DHS trial attorneys have only about 20 minutes to prepare for each case. Despite this time limitation, they often neglect to settle minor issues out of court or drop weak cases, charging ahead to seek the worst possible outcome for every immigrant. In one case, a trial attorney argued that a man provided "material support" to Burundi terrorists when they robbed him of $4.12 and his lunch. Ensuring professionalism and efficiency for trial attorneys will include updating the mission statement, mandating pre-trial conferences at the request of either party, encouraging prosecutorial discretion to reduce time-wasted on petty matters, and extending immigration judges' sanctioning authority to attorneys who appear in court unprepared.

Fix the appeal process. Multiple interviewees reported that the appeal process is often simply a regurgitation of the previous decision. Requiring fully reasoned written opinions and eliminating affirmance without opinion, as well as a return to three-member panels in situations where motions decide the outcome of a case, are necessary to keep the appeal process from being simply another waste of resources.

Several of these recommendations fall under the individual responsibilities of DOJ and DHS, but many address actions by both, and are for the most part cost-effective, in-the-trenches reforms rather than high-cost overhauls. Appleseed has met with officials in both agencies who have acknowledged that these reforms are necessary and indicated that they will be addressed.

We look forward to continuing conversations that we deem necessary to restore professionalism, efficiency, and legitimacy to an immigration court system that has fallen beneath the standards of American justice.

Malcolm C. Rich, executive director, Chicago Appleseed Fund for Justice; Julliard Lin, intern, Chicago Appleseed Fund for Justice; Vikas K. Didwania, Kirkland & Ellis LLP

Chicago Appleseed Fund For Justice - Immigration Court Reform

Motion to Reopen After Departure from U.S./Sua Sponte Authority to Consider Belated Motions

CA7 affirmed denial of motion to reopen by departed alien, finding that petitioner’s motion was unquestionably time-barred where petitioner offered no basis to excuse a six-plus year delay in moving to reopen. (Munoz de Real v. Holder, 2/11/10).

A petition for review, a BIA's decision affirming IJ's denial of a Mexican national's motion to reopen removal proceedings on the ground that based on intervening developments in the law, the conviction of felony drunk driving was not a proper basis for removal, is denied as petitioner's motion to reopen was unquestionably time-barred.

Read Munoz de Real v. Holder, No. 09-1945

Appellate Information: On Petition for Review from an Order of the Board of Immigration Appeals Decided February 11, 2010

Judges: Before: Easterbrook. Chief Judge, and Kanne, Circuit Judges, and Kennelly, District Judge Opinion by District Judge Kennelly

In Munoz De Real v. Holder, 2010 WL 455404 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit, in denying a petition for review, upheld an order by the BIA which refused to a reopen a final removal order against a Mexican citizen who claimed that the order was rendered a “legal nullity” by virtue of a Seventh Circuit decision after his physical removal, which decision held that drunk driving offenses are not “crimes of violence.” The circuit court did not reach the legal issue of whether the fact of the alien's departure from the U.S. precluded his motion but ruled that IJ's declination to exercise her sua sponte authority to entertain the petitioner's belated motion was justified and therefore did not constitute an abuse of discretion.

In January 2001, the petitioner, a former legal permanent resident of the U.S., was convicted of operation of a motor vehicle while intoxicated (OWI), with a prior OWI, in violation of Indiana law. At the time of his conviction, this offense was considered an aggravated felony (crime of violence). Removal proceedings were commenced against him pursuant to INA § 237(a)(2)(iii) [8 USCA § 1227(a)(2)((iii)], and an IJ ordered his removal on April 11, 2001. The petitioner did not challenge the IJ's order, and he left the country shortly after its issue. In December 2007, he moved to reopen his removal proceedings, citing to the Seventh Circuit's opinion in Bazan-Reyes v. I.N.S., 256 F.3d 600 (7th Cir. 2001), decided in July 2001, and ruling that drunk-driving offenses are not crimes of violence and therefore not aggravated felonies for the purposes of determining an alien's removability. The IJ denied this motion in December 2008 for lack of jurisdiction pursuant to 8 CFR § 1003.23(b)(1) because the petitioner had departed the U.S. The IJ further ruled that there was no basis to reopen the proceeding sua sponte because the 2001 removal order was lawful and in accordance with the law at the time when it was issued and did not result in a “gross miscarriage of justice.” In affirming the IJ's ruling, the BIA relied on its precedent decision, Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 2008 WL 4490316 (B.I.A. 2008), which held that immigration courts lack jurisdiction over a motion to reopen filed by an alien who has departed the U.S.

The Circuit Court explained that, pursuant to the Supreme Court's recent decision in Kucana v. Holder, 2010 WL 173368 (U.S. 2010), it had jurisdiction to review the denial of a motion to reopen (MTR) a removal proceeding. It indicated that the Seventh Circuit had not yet considered the question of whether the aforesaid regulation, precluding aliens who had departed the U.S. following a removal order from filing an MTR, was in conflict with the general statute authorizing MTRs, INA § 240(c)(7)(A) [8 USCA § 1229a(c)(7)(A)]. It observed that the Fourth and Ninth Circuits have ruled that immigration courts may hear such MTRs on behalf of departed aliens but concluded that it did not need to determine the effect of the regulatory departure bar in the instant case.

The court pointed out that INA § 240(c)(7)(A) requires that an MTR be filed within 90 days of the entry of an order of removal and that this 90-day period expired over six years before the petitioner filed his MTR. The court noted that the petitioner had argued that he had received ineffective assistance of counsel from the attorney who handled his removal proceedings and that this factor should excuse his untimely filing of the MTR. The court responded that attorney negligence is not, without more, a basis to toll a statute of limitations. Moreover, it stated that the petitioner offered no basis to excuse a six-plus-year delay in moving to reopen.

In addressing the petitioner's contention that the IJ erred by not recognizing her sua sponte discretion to consider the belated MTR, the court considered that the IJ did in fact reach the question of whether to exercise such discretion to reopen the case but chose not to do so. It emphasized that the IJ found that there was insufficient evidence that the removal order was a gross miscarriage of justice such as to justify its reopening. The court determined that the petitioner had offered nothing to suggest that the IJ's finding in that regard was an abuse of discretion.

EOIR Releases 2009 Statistical Year Book

The Department of Justice's (DOJ's) Executive Office for Immigration Review (EOIR) has recently released its Fiscal Year (FY) 2009 Statistical Year Book, summarizing the work of the EOIR for the past five years. The 129-page report was prepared by the EOIR's Office of Planning, Analysis and Technology. The report predominately covers cases before immigration courts and the Board of Immigration Appeals (BIA) but also includes cases received and completed by the Office of the Chief Administrative Hearing Officer (OCAHO).

The report begins with a list of highlights for FY 2009. According to the report, receipts by the immigration courts increased by 11% between FY 2008 (when they were 351,477) and FY 2009 (when they were 391,829). Immigration court completions in FY 2009 (353,082) increased by 4% from FY 2008 (339,440). Decisions by immigration judges (IJs) were found to have increased by about 1.5% between FY 2008 (229,316) and FY 2009 (232,212) but were down 12% compared to the recent high in FY 2005 (264,785). Thirty-nine percent of all completed court proceedings involved legal representation in FY 2009, a 1% decrease from 40% of represented cases in FY 2008. Among immigration court case completions, Mexico, El Salvador, Guatemala, Honduras, and China were the leading nationalities of the aliens in the immigration court completions.

The overall failure-to-appear rate fell to 11% of cases, a new five-year low, resulting in 25,330 in absentia orders being issued. The failure-to-appear rate for aliens who were once detained but subsequently released on bond or on their own recognizance decreased to 22% (23% in FY 2008), and the rate for those aliens who were never detained decreased to 27% (29% in FY 2008).

With respect to asylum statistics, the FY 2009 asylum filings at the immigration courts continued to decrease with a drop of 7,400 applications, with the decrease split nearly equally between affirmatively-filed and defensively-filed applications. Atlanta, Georgia; Los Angeles, California; Miami, Florida; New York City, New York; and San Francisco, California, received over half of all asylum filings in FY 2009.

While the rate at which asylum applications were granted increased slightly from 45% in FY 2008 to 47% in FY 2009, the actual number of grants decreased over the same time frame, with a total of 10,757 being granted in FY 2008 and only 10,186 in FY 2009. The five immigration courts that heard at least 100 cases and have the highest percentage of approved asylum cases are East Mesa, California (90%, 99 grants out of 110 cases), Arlington, Virginia (74%, 372/505), New York City, New York (73%, 4,076/5,608 grants), Honolulu, Hawaii (72%, 119/165), and San Diego, California (69%, 264/384 grants). The five immigration courts that heard at least 100 cases and have the lowest grant rates are Krome North SPC, Florida (8%, 221/249 denials), Eloy, Arizona (8%, 92/100 denials), Florence SPC, Arizona (11%, 93/104), Omaha, Nebraska (12%, 199/226) and Denver, Colorado (165/209). A table from the FY 2009 Statistical Year Book showing FY 2009 asylum grant rates listed by specific immigration court location is reproduced below.

There were a total of 25,665 cases filed under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or Convention Against Torture). Of those, 504 were granted some form of relief, 10,894 were denied, 5,583 were withdrawn, 1,340 were abandoned, and 7,344 resulted in some other type of action not listed.

Turning to the BIA, the number of cases filed with the BIA decreased slightly to 32,859 in FY 2009, down from 33,464 in FY 2008. Only 8% of the decisions made by IJs were appealed to the BIA in FY 2009.

At the end of FY 2009, there were 27,969 cases pending at the BIA, down slightly from FY 2008 in which 28,874 were pending at the end of the fiscal year.

Cases in which aliens are represented remained about the same, with 77% of completed cases, or 22,770, having some representation for the alien.

The FY 2009 edition of the EOIR Statistical Year Book, which includes many charts, graphs, and a glossary of terms, can be found at http://www.justice.gov/eoir/statspub/fy09syb.pdf.