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Federal Court Victory for Hospital Staffing Services Company

10 Dec


Just beforeTKR Thanksgiving, we filed suit in federal district court against U.S. Citizenship and Immigration Services (USCIS) on behalf of a hospital staffing services company. Our lawsuit challenged the agency’s denial of an H-1B specialty occupation visa to a foreign physician whom the company sought to employ to care for patients in a low-income, medically underserved area. This is a story of why litigation matters, and why suing the government is sometimes the only way to achieve a just outcome. Last Friday, a mere fourteen days after the lawsuit was filed, USCIS reopened the case, reconsidered its prior denial, and approved the H-1B visa. The company will get its physician, the physician will get to stay in the U.S. and continue his work in internal medicine, and the residents of the medically underserved area will be afforded the quality medical care they so desperately need. But there’s more to the story …

Many communities throughout the U.S. lack sufficient, quality health care services. Their local hospitals are not sufficiently staffed and the specialties and expertise that many patients require are simply unavailable. Thus, certain regions of the country are designated by the federal government as health professional shortage areas, because they struggle to attract qualified doctors and nurses who are willing to live and work in often rural areas where the residents may be poor or low-income. In an effort to meet this need, Congress passed a law whereby foreign physicians who would otherwise have to leave the U.S. upon completion of their residency – and remain outside the country for at least two years – can waive this Physicianrequirement by committing to spend three years in a health professional shortage area. The program makes sense – patients in medically underserved communities get a qualified, committed physician and the foreign doctor avoids a two-year exile from the United States.

The physician whom our client sought to employ is typical of those who benefit from the program. After completing his residency at a U.S. hospital, he was granted a waiver of the two-year home residency requirement in exchange for his agreement to serve in one of the state’s health professional shortage areas. He was offered a position as an internal medicine physician by the hospital staffing services company, which then filed a petition for an H-1B visa on his behalf. Everything appeared to be in order and it seemed only a matter of time before the visa would be issued. But the immigration service had other ideas.

Rather than approve a straightforward petition filed by a company that had never before been denied an H-1B visa, USCIS issued a lengthy request for additional evidence (RFE), questioning the nature of the job of the viability of the petitioner. The company promptly submitted a detailed response. The agency then issued a second RFE, asking for yet more information and documentation – all of which had previously been provided. Once again, the company filed a thorough response and gave the agency everything it asked for. But USCIS was not convinced, and issued a lengthy decision denying the H-1B petition – based on a purported (and insignificant) discrepancy that had not been raised in either of the RFEs. Remarkably, the agency expressed doubt that the company had made a “credible offer of employment as an Internal Medicine Physician.”

At this point, we were contacted by the attorney who represented the company before USCIS. She knew the agency’s decision was wrong and sought our help in overcoming the denial. Once we’d reviewed the decision and the underlying materials, we agreed, and proposed that litigation in federal court – rather than a protracted administrative appeal – was the best course. The company agreed, so we filed suit challenging the agency’s decision under the Administrative Procedure Act (APA) as arbitrary, capricious, contrary to law and past agency practice, and unsupported by substantial evidence. We described the merits of the petition and detailed the hardships visited upon the company, the physician, and the medically underserved community impacted by the loss of a qualified doctor. To fast-track the case, we also filed a motion for preliminary injunction, asking the Court to enjoin USCIS from its erroneous decision and order the agency to issue the visa.

And it worked. Our litigation forced the agency to reexamine the petition and consider whether its myopic decision could withstand the scrutiny of a federal judge. Just two weeks after the case was filed – and one week before a scheduled court hearing – USCIS reopened the case on its own motion and granted the H-1B petition. Today, instead of packing his bags and preparing his family for an early and unexpected departure from the United States, the physician will go to work in a community in dire need of his services. Suing the government isn’t always the best option, but sometimes it’s the only strategy that works.

After Lengthy Court Battle, Client Sworn in as U.S. Citizen

4 Jun


Last Friday in Baltimore, Maryland, our client, Temitope (“Tope”) Akinsade, was sworn in as a U.S. citizen. Naturalization ceremonies are always gratifying, but this event was particularly moving in light of the government’s relentless and ultimately unsuccessful effort to deport Tope – who has been a lawful permanent resident for over 12 years. To know Tope’s story is to understand both the unfairness of our immigration laws and the charade that is ICE’s supposed policy on prosecutorial discretion.

A native of Nigeria, Tope came to the United States with his family as a 7-year-old in 1988. In 2000, at the age of 19, he pled guilty to a felony embezzlement charge after cashing three checks for some neighborhood toughs at the bank where he was working as a teller. Shortly after the incident, Tope reported the transactions to his supervisor and agreed to cooperate with the police and the FBI in their investigation. On the advice of his attorney, who assured him he would not be deported but would “become a citizen in five years,” Tope pled guilty to one count of embezzlement by bank employee. He was sentenced to one month in community confinement and three years of probation, which he successfully completed.

Believing the incident was behind him, Tope enrolled at the University of Maryland, where he earned a bachelor’s degree in computer science with honors. He stayed at Maryland to earn a master’s degree, receiving a full fellowship from the National Science Foundation. Tope was then offered a slot in a leadership program at General Electric, working in the company’s Global Research Center in upstate New York. For several years he worked for GE and traveled to and from the U.S. without incident.

Then, one morning in January 2009, Tope was arrested by ICE agents, charged with being deportable from the United States, and sent to a detention center in Batavia, New York. Authorities claimed that his embezzlement conviction qualified as an “aggravated felony,” which under U.S. immigration law means near-mandatory deportation. He was held for seventeen months before being released on bond. Although he had not been sentenced to prison for the underlying crime, Tope spent nearly a year and a half imprisoned by ICE, and he faced removal proceedings in immigration court without the right to an appointed attorney.

Over the course of many months, Tope’s case ground its way through the notoriously slow workings of immigration court. An immigration judge sustained the government’s claim that Tope’s embezzlement conviction in 2000 met the definition of an “offense involving fraud or deceit,” and thus an aggravated felony. As a result, he not only was found deportable but also declared ineligible for virtually all forms of relief – including cancellation of removal – despite having been a green card holder for nearly nine years. The Board of Immigration Appeals affirmed the immigration judge’s decision.

Tope then brought his case to the federal courts. He appealed the BIA’s removal order to the U.S. Court of Appeals for the Second Circuit in New York. At around the same time, he hired a criminal attorney to file a writ of error coram nobis in U.S. district court in Maryland, asking the court to vacate his embezzlement conviction based on the gross misadvice about immigration consequences he was given during his criminal proceedings in 2000. The district court judge found that Tope had received ineffective assistance of counsel, but ruled that he had not been prejudiced because the trial court gave a general warning during his plea hearing that if he was not a U.S. citizen, a conviction could lead him to be deported. Tope appealed the judge’s order to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. His fate now rested in the hands of the two federal appeals courts.

Tope’s fortunes finally began to change when Thomas Ragland took the case. Thomas filed briefs and presented oral argument in the Second Circuit, urging the court to vacate Tope’s removal order because the embezzlement statute under which he was convicted required proof of either an intent to defraud or an intent to injure – and the record of conviction was inconclusive as to Tope’s intent at the time of the offense. The government strenuously opposed these arguments, insisting that the conviction was clearly an aggravated felony and that Tope should be deported without delay. In May 2012, the Second Circuit issued a precedent decision agreeing with Thomas’ arguments that Tope had not been convicted of an aggravated felony, because both the immigration judge and the BIA had improperly inferred an intent to deceive in the commission of the embezzlement offense – which was not established by the record of conviction. In addition, given the relatively minor nature of the crime, the passage of time, and Tope’s exemplary achievements, the court also wondered aloud why ICE refused to favorably exercise prosecutorial discretion in the case. Finding that the government had failed to prove its aggravated felony charge, the appeals court vacated Tope’s order of removal.

At the same time, Thomas also briefed and argued the coram nobis appeal in the Fourth Circuit. In July 2012, the court sustained the appeal and reversed the lower court’s ruling, agreeing with Thomas’ argument that a trial court’s general warning about deportation consequences at the plea stage was inadequate to overcome an attorney’s specific (incorrect) assurances to his client that entering a guilty plea would not render him deportable. Thus, in another precedent decision, the Fourth Circuit vacated Tope’s embezzlement conviction altogether. Federal prosecutors urged the en banc Fourth Circuit to rehear the case, but their request was denied.

With a clean record – as both his removal order and his felony conviction had now been vacated – Tope submitted his naturalization papers last November. Several weeks after appearing with Thomas for an interview at U.S. Citizenship and Immigration Services, he was notified that his application had been approved. On Friday May 24, Tope took the oath of allegiance and became U.S. citizen.

Tope spent over a year in ICE detention based on a single conviction that did not result in any jail time, and which ultimately was vacated by the federal court of appeals. And the government relentlessly sought to deport him based on an aggravated felony charge that evaporated under the glare of judicial scrutiny. In the past two years, ICE has stated that its personnel will use “prosecutorial discretion” to judiciously manage its expenditure of resources in immigration proceedings. In a memo published in June 2011, ICE Director John Morton outlined a series of factors to be taken into consideration when deciding to exercise prosecutorial discretion. Among these factors was the length of time spent in the United States, particularly in lawful status, the pursuit of higher education in the United States, whether the individual entered the United States as a child, whether the individual poses a national security or public safety concern, ties and contributions to the community, and whether the individual has cooperated with law enforcement. All of these factors weigh in favor of an exercise of prosecutorial discretion for Tope Akinsade, yet ICE refused and instead aggressively and persistently sought to deport him. It was not until the Second Circuit ruled in his favor that Tope was assured that his conviction, later held to be constitutionally unsound, would not prevent him from remaining in the United States. Fortunately, the federal appeals courts were persuaded by legal arguments challenging both the BIA’s removal order and the U.S. district court’s denial of coram nobis relief. The law prevailed where ICE’s discretion and common sense failed. Tope Akinsade is a proud and deserving United States citizen.

Thoughts on the Supreme Court’s Opinion in Chaidez

22 Feb

Is Padilla retroactive? This hotly debated question was definitively answered on Wednesday, when the Supreme Court issued its decision in Chaidez v. United States. As we discussed in a previous post, Chaidez concerned whether the Court’s 2010 decision in Padilla v. Kentucky applies retroactively to cases already final on direct review. Padilla held that a criminal defendant is deprived of effective assistance of counsel, in violation of her Sixth Amendment rights, when her trial counsel fails to advise her that accepting a guilty plea may result in near-certain deportation. If Padilla applies retroactively, noncitizens with convictions that became final years or, in some cases, decades earlier could nevertheless benefit from its holding. The lower federal and state courts were intractably split on the retroactivity question, and review by the Supreme Court seemed inevitable.

In a 7-2 decision authored by Justice Kagan, the Court ruled in Chaidez that “under the principles set out in Teague v. Lane, 489 U.S. 288 (1989), Padilla does not have retroactive effect.” To the contrary, Padilla “announced a ‘new rule.’” Consequently, a criminal defendant whose conviction became final prior to March 31, 2010—the date Padilla was issued—cannot benefit from Padilla’s holding that criminal defense attorneys must inform their noncitizen clients of the deportation risks associated with accepting a guilty plea. More significantly, individuals in this position are unable to claim that their attorney’s failure to properly advise constitutes a violation their constitutional right to effective assistance of counsel, and thus grounds for post-conviction relief.

The Court’s assertion in Padilla that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” had inspired hope among many noncitizens (and their lawyers) that efforts to modify or vacate past convictions—and thereby avoid deportation—were not only viable, but grounded in venerated constitutional principles. For a great many, Chaidez dashed those hopes. Justice Thomas authored a concurring opinion, standing firm in his belief that “Padilla was wrongly decided and [] the Sixth Amendment does not extend—either prospectively or retrospectively—to advice concerning the collateral consequences arising from a guilty plea.” Justice Sotomayor, joined by Justice Ginsburg, dissented. The dissent essentially agreed with Ms. Chaidez’s argument that “Padilla did nothing more than apply the existing rule of Strickland” and complained that the majority’s opinion rests on a distinction—between direct and collateral consequences of a conviction—that “the Court has never embraced and that Padilla found irrelevant to the issue it ultimately decided.”

The majority’s decision in Chaidez rested on its application of Teague, which explained that “a case announces a new rule when it breaks new ground or imposes a new obligation” on the government. Stated otherwise, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” The Court rejected Ms. Chaidez’s contention that Padilla was nothing more than the application of existing precedent—Strickland v. Washington—to a new set of facts, namely, the deportation consequences of a guilty plea. The Court acknowledged that “garden-variety applications of the test in Strickland … for assessing claims of ineffective assistance of counsel do not produce new rules.” And as the Court had previously declared, Strickland “provides sufficient guidance for resolving virtually all” claims of ineffective assistance, across “diverse contexts,” without the need for a new rule. Ms. Chaidez’s attorney had emphasized this point during argument, noting that in the nearly three decades since Strickland was decided, the Court had never (before) ruled that an application of Strickland’s two-prong test for ineffective assistance of counsel—deficient performance and prejudice—resulted in a new rule.

That changed with the issuance of Chaidez, however, because the Court concluded that “Padilla did something more.” Specifically, the majority explained, prior to assessing how the Strickland test applied to Mr. Padilla’s ineffective assistance claim, Padilla first asked whether the Strickland test applied at all to a claim concerning deportation consequences. It’s a relevant question, because a defense attorney’s advice about issues that are collateral rather than direct consequences of a guilty plea generally do not implicate the Sixth Amendment. For example, whereas imprisonment, fines, or probation are direct consequences of conviction, other effects such as civil commitment, civil forfeiture, sex offender registration, and loss of voting rights are generally viewed as collateral. And prior to Padilla, state and lower federal courts “almost unanimously concluded that the Sixth Amendment does not require attorneys to inform their clients of a conviction’s collateral consequences, including deportation.”

This purported “near unanimity” among the lower courts that deportation consequences are collateral, and thus do not implicate the Sixth Amendment, proved to be a hurdle Ms. Chaidez could not overcome. According to the majority, before Padilla, “[a]ll 10 federal appellate courts” and “almost 30 states” agreed with this position, whereas “only two state courts” had ruled that failing to advise a client about deportation risks or other collateral consequences violated her constitutional right to effective assistance. Consequently, the Court said, Padilla “answered a question about the Sixth Amendment’s reach that we had left open,” and the answer conflicted with the overwhelming consensus among the lower courts. The majority thus rejected Ms. Chaidez’s contention that Padilla merely applied—in fact, was dictated by—Strickland, because Padilla had first to answer the threshold question “whether Strickland applied at all.” And the Court resolved this threshold question “by breaching the previously chink-free wall between direct and collateral consequences.”

According to the majority, “[i]f that does not count as ‘break[ing] new ground’ or ‘impos[ing] a new obligation,’ we are hard pressed to know what would.” Because Padilla was not dictated by precedent, the Court held, under Teague the decision qualifies as a new rule. The majority rejected the arguments advanced by Ms. Chaidez—and championed by the dissent—that Padilla’s application of Strickland to deportation consequences was reasonable and unextraordinary, resulting as it did from the mere evolution of professional norms. To the contrary, the majority declared that “Padilla had to develop new law, establishing that the Sixth Amendment applied at all, before it could assess the performance of Padilla’s lawyer under Strickland.” Notably, the majority quickly added that although Padilla’s holding— “that the failure to advise about a non-criminal consequence could violate the Sixth Amendment”—may not have been “apparent to all reasonable jurists,” the decision stands unscathed: “we do not cast doubt on, or at all denigrate, Padilla.” This reaffirmation of Padilla, particularly in light of certain Justices’ persistent hostility to the decision, stands as a bright spot in an otherwise disappointing opinion.

What now? It seems safe to predict that Chaidez is not the end of the story on this issue. As the majority noted in a final footnote, two arguments advanced by Ms. Chaidez were not addressed in the Court’s opinion, because they were not adequately raised below. The first is that Teague does not apply to cases in which a noncitizen defendant is challenging a federal as opposed to a state conviction, and the second is that the “new rule” announced in Padilla applies to post-conviction ineffective assistance of counsel claims, because such claims cannot be brought on direct appeal but only through a later habeas or coram nobis action. For claimants who would otherwise be precluded from seeking post-conviction relief under Chaidez, such arguments are certainly worth pursuing.

In addition, it seems that Chaidez is not fatal to ineffective assistance claims based on affirmative misadvice as to deportation consequences, rather than mere failure to advise. Counsel for the government appeared to concede as much during argument in Chaidez. In response to questioning by Justice Sotomayor, Michael Dreeben from the Solicitor General’s office agreed that Padilla did not distinguish between misadvice and omissions to give advice—between errors of commission versus errors of omission—and that “misadvice claims [] existed before Padilla.” He explained that affirmative misadvice “violate[s] a more basic duty of counsel that was well established” before Padilla, namely the duty “not to get in the way” of a client’s constitutional right to decide whether to plead guilty. Thus, he allowed, “I would probably not disagree that misadvice was not new before Padilla” and it “has its own independent sources.” Accordingly, a noncitizen seeking to modify or vacate a pre-Padilla conviction based on affirmative misadvice as to likely deportation consequences need not resort Padilla, and thus would not be barred by Chaidez. Such a client could base her claim on a straightforward application of Strickland.

Protecting the Homeland

3 Jan
English: Mo Farah during EC Cross 2008

English: Mo Farah during EC Cross 2008 (Photo credit: Wikipedia)

Ever heard of Mo Farah? If you watched the London Olympics last summer, the name likely rings a bell. Mohamed “Mo” Farah is a Somali-born British track and field superstar. He is the current Olympic champion at the 10,000 meters and 5,000 meters. He is also World Champion and European Champion at the shorter distance. A few days ago, he was appointed Commander of the Order of the British Empire (CBE) in honor of his athletic achievements. Pretty impressive, right?

Well, according to U.S. immigration officials, he’s also a suspected terrorist. Just before Christmas, when he was returning to Oregon to spend the holidays with his family, he was pulled out of line by agents of U.S. Customs and Border Protection (CBP) and questioned for hours. You can read the full story as reported by the New York Daily News here. Farah was understandably shocked by the treatment he encountered. “I couldn’t believe it. Because of my Somali origin I get detained every time I come through US Customs. This time I even got my medals out to show who I am, but they wouldn’t have it.” Can this be right? Despite being shown his two gold medals from the London Olympic Games, CBP officials continued to question Farah and investigate whether he posed a terrorist threat? Could it be that CBP Portland doesn’t yet have access to the internet?

Perhaps more troubling, this was not Farah’s first run-in with U.S. immigration officials or the first time he’s had to fight to clear his name. When he applied for permanent residency (a “green card”) last year, immigration authorities informed him that he was under investigation as a potential terrorist threat. His application was only processed – and approved – after he reached out to his coach, famed former champion Alberto Salazar (heard that name before?). Apparently, Salazar contacted a friend in the FBI who made some calls and helped sort things out. Is that really what it takes?

Indian actor Shah Rukh Khan, arrival for press...

Indian actor Shah Rukh Khan, has been detained by the CBP on several occasions. (Photo credit: Wikipedia)

Sadly, the answer is yes. In April of last year, Indian film superstar Shah Rukh Khan was detained and questioned by U.S. immigration officials in White Plains, New York. Khan is arguably Bollywood’s biggest star, a veritable industry unto himself. He is much beloved in his homeland – and around the world – but, alas, he also has a Muslim-sounding name. Like Farah, this was a repeat occurrence for Khan, who was previously detained for two hours at Newark Airport and released only following intervention by the Embassy of India. Khan wryly commented: “Whenever I start feeling arrogant about myself, I always take a trip to America. The immigration guys kick the star out of stardom.”

Okay, a couple of isolated incidents, right? Hardly. In December 2010, India’s then-Ambassador to the United States Meera Shankar was pulled out of the security line at an airport in Mississippi and frisked by an immigration officer, apparently because she was wearing a sari. On two occasions, former Indian President APJ Abdul Karam was singled out and frisked by immigration officials. One of those times, agents also saw fit to confiscate his jacket and shoes. The list goes on and on.

A few years ago, we represented a well-known Tibetan folk singer named Yungchen Lhamo, and helped her obtain a green card based on her exceptional ability in the arts. Lhamo, who has been called the world’s leading Tibetan vocalist, has performed around the world and recorded with the likes of Annie Lennox, Natalie Merchant, Michael Stipe, Philip Glass, and Sheryl Crow. Her songs were featured on the soundtrack of Seven Years in Tibet, and Peter Gabriel was so taken by her ethereal voice that he signed her to his prestigious Real World Records label. Lhamo, who walked to freedom from Tibet to India over the Himalaya mountains, stands all of five feet tall, often wears traditional Tibetan clothing, and greets the world with a warm, gentle demeanor. Obvious security threat.

Lhamo told me that every time she travels back to the United States – she’s a permanent resident, mind you, who lives in New York – she is stopped, detained for hours, sometimes questioned (but other times not), and ignored when she attempts to explain who she is. “Finally, I have to bring out my photo album,” she told me. The album, which she also showed me, contains photographs of Lhamo and Paul McCartney. Lhamo and Sting. Lhamo and Peter Gabriel. Lhamo and John Cleese. And (my personal favorite) Lhamo and the Smashing Pumpkins. And many, many more. “Usually, after a few hours, one of the officers will say ‘Oh, you must be someone important’ and they’ll finally let me go.” But there are no apologies, no notations in the system, and she can expect the same mistreatment next time around.

Now, some will say this is just the price we pay in the post-9/11 world to ensure that we’re safe, to ensure America’s security. But as Benjamin Franklin famously remarked: “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” And does anyone truly feel safer knowing that our national security is in the hands of government agents who can’t distinguish between an Olympic gold medalist and a terrorist threat? Or a global movie superstar, or an Ambassador to the U.S., or a former President of India? Can we not instruct these agents in how to use Google? At least Barney Fife wasn’t put in charge of anything important.

What other agency of the U.S. government is permitted to engage in such blatant racial, ethnic, and religious profiling? Who other than officers of the Department of Homeland Security are empowered to detain and interrogate lawful U.S. residents based solely on their country of origin, the sound of their name, or the clothes they happen to be wearing? Where else but in DHS can we find such institutionalized xenophobia?

But fret not! Our hard-working immigration officials are protecting the homeland from the likes of Mo Farah and Yungchen Lhamo. Feel safer now?

Supreme Court Argument in Chaidez v. United States

2 Nov

So I went up to the Supreme Court yesterday to hear argument in Chaidez v. United States, No. 11-820. Chaidez concerns the straightforward question whether the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively – i.e., to defendants whose convictions became final prior to its issuance two years ago. Jeffrey Fisher from Stanford Law School’s Supreme Court Litigation Clinic argued on behalf of Ms. Chaidez, and Michael Dreeben from the Solicitor General’s office on behalf of the government. Spirited arguments from both sides. Shout out to Friend of BR Chuck Roth from the National Immigrant Justice Center in Chicago, who sat right up front at counsel table with the other legal hotshots.

First off, I have to say I love attending arguments at the Supreme Court. I’m an unapologetic con-law nerd, and watching argument is like political theatre for lawyers. It doesn’t even have to be an immigration case – even the dreariest dormant commerce clause dispute can be enthralling when you have the wisecracking Justice Scalia, the sharp-tongued Justice Ginsburg, and the gesticulating Justice Breyer on the bench. You can keep your Arena Stage and Shakespeare Theatre – for me, 1 First St., NE is where the drama really unfolds.

In Padilla, the Court held that a criminal defendant is deprived of effective assistance of counsel, in violation of her Sixth Amendment rights, when her trial counsel fails to advise her that accepting a guilty plea may result in near-certain deportation. Padilla involved a plea to a charge of transporting marijuana, which qualified as both a deportable controlled substance offense, INA §237(a)(2)(B)(i), and an aggravated felony drug trafficking offense, INA §101(a)(43)(B). In 2003, Ms. Chaidez, on advice of counsel, pled guilty to mail fraud and was ordered to pay more than $22,000 in restitution, making her crime an aggravated felony “offense involving fraud or deceit in which the loss to the victim exceeds $10,000,” INA §101(a)(43)(M)(i).

Padilla announced that such ineffective assistance with respect to deportation consequences – an issue collateral to the criminal proceedings but nonetheless a “matter of great importance” to noncitizen criminal defendants – “is not categorically removed from the ambit of the Sixth Amendment right to counsel.” 130 S. Ct. at 1482, 1484. Such constitutionally deficient representation satisfies the first prong of the test articulated in Strickland v. Washington, 466 U.S. 668 (1984), and where a defendant also proves the second prong – that she was prejudiced by her attorney’s ineffective assistance – the conviction is constitutionally infirm and the post-conviction relief sought (typically via habeas corpus or writ of coram nobis) should be granted. But Padilla did not address whether its holding applies retroactively to cases brought on collateral review.

To answer the retroactivity question, the parties in Chaidez turned to Teague v. Lane, 489 U.S. 288 (1989), which held that a decision that merely applied an established rule to the facts of a particular case applies retroactively to convictions that are already final. But where a rule of criminal procedure “breaks new ground or imposes a new obligation on the States or the Federal Government,” the rule does not apply retroactively to cases on collateral review. Teague, 489 U.S. at 301. The government argued that Teague controls and Padilla announced a new rule, hence it does not apply retroactively. Counsel for Ms. Chaidez countered that Padilla was merely the application of existing precedent (Strickland) to a new set of facts, and, moreover, that the Court should say Teague does not even apply where a case is on the equivalent of direct review – i.e., a first challenge to the trial court’s decision, which in the plea context only occurs upon habeas or coram nobis review because direct appeal has been waived.

In yesterday’s argument, Mr. Fisher declared that Padilla did not announce a new rule because the Court’s decision was “dictated by precedent,” namely Strickland, and it “simply applied Strickland’s formula of assessing attorney performance according to prevailing professional norms to a new set of facts.” Mr. Dreeben, by contrast, maintained that Padilla “announced a new rule within the meaning of Teague” because, in part, no prior Supreme Court decision “had ever held that the obligations of a criminal defense lawyer under the Sixth Amendment extended” to accurately advising a defendant of deportation consequences. In other words, Padilla “broke new ground” because it cannot be said that “any reasonable jurist would have reached [the] result” announced in Padilla – as evidenced by near unanimity among the lower courts that there exists no Sixth Amendment obligation for counsel to accurately advise a client of potential collateral consequences, including deportation consequences.

The points raised at argument tracked, to a significant degree, the arguments presented in the respective parties’ briefs. There were no real bombshells, no clear “gotcha” moments, and it’s difficult to predict the outcome of the case, although it seems likely to be a split opinion along the same lines as Padilla. Justice Scalia implied as much when he asked Mr. Fisher whether he would agree that those who dissented in Padilla (Justices Scalia and Thomas, with Justice Alito and Chief Justice Roberts in concurrence) would regard it as announcing a new rule. Mr. Fisher: “That’s a tricky question to answer, Justice Scalia.” Justice Scalia: “Well, I think it’s an easy question to answer.” Sustained laughter in the courtroom. No ambiguity there.

But certain moments did stand out, moments which give cause for optimism that the Court may issue a favorable ruling – namely, that Padilla does apply retroactively, because it was merely an application of Strickland and did not announce a new rule under Teague. As Mr. Fisher observed in his opening remarks, in the 20 years since Teague was decided, more than a dozen cases have been presented to the Supreme Court involving post-conviction claims based on ineffective assistance of counsel, and the Court “has never once held that applying Strickland in those [various cases] constituted a new rule.” To do so in this case would be a first. He also effectively pressed the point that Padilla did not hold that Strickland extends to all collateral consequences of a conviction, but only that “advice concerning deportation consequences of a guilty plea are not categorically removed from the Sixth Amendment.”

Mr. Fisher described the lower courts’ contrary holdings, prior to Padilla, as creating an “artificial restriction on Strickland” that the Court should now correct. He noted also the helpful language in Williams v. Taylor, 529 U.S. 362 (2000), paraphrasing the Court that “Strickland provides sufficient guidance to resolve virtually every ineffective assistance claim.” Consequently, even in different factual scenarios, no new ground is broken and no new rule arises because “so long as you simply applied Strickland, you wouldn’t create a new rule.” Persuasive also was his reminder that Padilla was not the first decision to recognize the importance of deportation consequences, because nine years earlier the Court had observed that “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” INS v. St. Cyr, 533 U.S. 289, 323 (2001). As Mr. Fisher put it in response to a question from Justice Kagan, “even if you needed more than Strickland itself” to decide this issue, “St. Cyr gave that to you in 2001 … it was enough to decide Padilla.”

In response to concerns raised by Justices Alito and Kennedy about the finality of criminal convictions, particularly where claims might be brought years later in a writ of coram nobis, Mr. Fisher again turned to Strickland’s statement that “no different rules ought to apply in collateral proceedings [than] in direct review,” because the Court assumed in both Strickland and in Padilla that “all of these claims would be on collateral review.” Thus, “the very concern you mentioned, Justice Kennedy, is already baked into the Strickland formula.” Furthermore, Mr. Fisher’s efforts to collapse the distinction, for Sixth Amendment purposes, between an attorney’s affirmative misadvice and mere failure to properly advise – between, as Padilla put it, acts of commission and acts of omission – was key to his argument. He was aided by the majority opinion’s discussion in Padilla, which acknowledged support for this distinction among the lower courts but declared that such a limited holding would invite “absurd results.” Padilla, 130 S. Ct. 1484.

When Mr. Dreeben stood up, he wasn’t even allowed to complete his first sentence before Justice Sotomayor asked him about the omission-commission distinction. In response, he conceded that “Padilla didn’t distinguish between misadvice and omissions to give advice” and maintained that applying Sixth Amendment protections to either would qualify as a new rule under Teague, thus “neither is retroactive.” He went on to discuss the lower courts’ refusal to find constitutional deficiency where the ineffective assistance related to collateral consequences – including deportation consequences – and acknowledged that those decisions arose primarily in cases involving affirmative misadvice. In Mr. Dreeben’s words, “a client has a constitutional right to make his or her own decision about whether to plead guilty; and a lawyer has a constitutional duty not to get in the way of that by affirmatively skewing the client’s ability to make that choice.” But he emphasized that prior to Padilla, “[n]o decision of this Court had ever held that the obligations of a criminal defense lawyer under the Sixth Amendment extended to” a collateral consequence, i.e. “a consequence that would not be administered in the criminal case itself.” To my mind, this among the government’s strongest arguments. As Mr. Dreeben insisted, “Padilla broke new ground because it answered the question, not how does Strickland apply, but whether it applies at all to something outside the compass of the sentencing court.”

In the end, the outcome in Chaidez will turn on whether the Court interprets Padilla as breaking new ground or merely applying the established rule in Strickland to a new set of facts. Justice Kennedy noted that “one of the principal sources the Court cited in Padilla,” for extending Sixth Amendment protections to the collateral issue of deportation consequences “was common sense.” And as an immigration lawyer, it’s hard to deny that what the Court did in Padilla felt novel and momentous – and the past two years have only confirmed that impression. As my partner Andres Benach remarked on the day the decision was issued, “Padilla is a game-changer.” As Mr. Dreeben effectively argued, “My test for Teague new rules is this Court’s test: Whether the decision was dictated by precedent so that any reasonable jurist would have reached that result, or, to put it another way, that no reasonable jurist could not have.” To hold that Padilla applies retroactively would require the Court to find that nearly every lower court that had addressed the question prior to Padilla simply got it wrong. That those courts erred by failing to apprehend that Sixth Amendment protections do extend to advice by trial counsel regarding deportation consequences, and that this rule was dictated by precedent, namely Strickland. Although, as Justice Sotomayor retorted, “So unanimous error makes right?”

In his brief rebuttal, Mr. Fisher returned to the distinction between affirmative misadvice and failure to advise, and insisted that the government’s case cannot withstand the Court’s collapsing of that distinction. He argued, “The only thing [Mr. Dreeben] relies on in the end is this distinction the lower courts had drawn between acts and omissions. And that’s exactly the distinction in Strickland that this Court rejected” and which Padilla described as “absurd.”

Did Padilla break new ground and announce a new rule, or was the result dictated by an existing rule of law, as set forth in Strickland? We’ll find out in a few months’ time.

Aggfel & CIMT Victory in Arlington Immigration Court

22 Oct

We prevailed in a long-fought case this week in the Arlington Immigration Court. The Immigration Judge granted our motion to terminate proceedings, agreeing that our client’s conviction in Virginia for attempted sexual battery was neither an aggravated felony nor a crime involving moral turpitude (CIMT), and that he is not deportable as result of the offense. (IJ Decision – redacted.) But that’s hardly the entire story …

In September 2008, our client Y— pled guilty and was convicted of attempted sexual battery in violation of Va. Code §18.2-67.5(c), sentenced to 11 months imprisonment (all suspended), plus 1 year of supervised probation. In March 2010, he was arrested by ICE and sent to Hampton Roads Regional Jail. DHS charged him with (1) aggravated felony “sexual abuse of a minor” and (2) CIMT within 5 years of admission. He appeared for four consecutive master calendar hearings, during which the government sought to introduce new evidence and just delayed the proceedings, before the family hired us the day before the fifth MCH. We stayed up late preparing a lengthy motion for bond redetermination, arguing that his offense did not qualify as an aggravated felony, thus he wasn’t subject to mandatory detention and should be released on bond, and we filed and argued it the next day. The IJ agreed, rejected the aggfel charge, conducted a bond hearing, and ordered Y— released on $10K bond. The very next day, DHS not only appealed the IJ’s bond order, it also invoked the “automatic stay” under 8 C.F.R. §1003.19(i)(2) in order to prevent our client from bonding out of ICE custody.

Certain that Y— was not subject to mandatory detention, we promptly filed a writ of habeas corpus in the US District Court for the Eastern District of Virginia, challenging our client’s continued custody under the automatic stay provision. We argued that 8 C.F.R. §1003.19(i)(2) is ultra vires to the statute, because it grants DHS unchecked ability to override an IJ’s bond decision under INA §236(a), without having to demonstrate why continued detention is warranted. At the next MCH one week later, DHS relented and withdrew the automatic stay. The family posted bond and Y— was released from ICE custody after a 2-month ordeal. But DHS persisted with the bond appeal, insisting that our client’s conviction was an aggravated felony.

The Board of Immigration Appeals disagreed (BIA Decision – redacted.) The Board agreed with us that under the categorical approach, Y—’s conviction is not an aggravated felony because the Virginia statute under which he was convicted lacks an element requiring that the victim be a minor, or specifying the age of the victim. The BIA then remanded the case to the Immigration Court. Having lost on the aggfel charge, DHS turned its focus to the CIMT ground of deportability. The government argued that although neither the categorical nor the modified categorical approach reveals that Y—’s offense is a CIMT, under Step Three of Matter of Silva-Trevino, the IJ should consider evidence from outside the record of conviction that purportedly demonstrated our client’s conduct was morally turpitudinous.

In October 2011, we filed our first motion to terminate, arguing that Silva-Trevino was wrongly decided because it conflicts with Fourth Circuit law, Supreme Court jurisprudence, and decades of adherence to the traditional categorical and modified categorical approach. DHS did not respond. After the Fourth Circuit rejected Silva-Trevino in Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012), we filed a supplemental motion to terminate based on intervening precedent. Again DHS did not respond, so we filed a notice of non-opposition, urging the IJ to rule on our long-pending motion to terminate. On the day of Y—’s next MCH in May 2012, DHS filed its brief in opposition, arguing now that attempted sexual battery in Virginia is categorically a CIMT. Despite having previously conceded that moral turpitude could not be discerned until Silva-Trevino Step Three, the government now urged the court to find that Y—’s conviction is a CIMT at Step One, because “moral turpitude is intrinsic to all offenses that have a realistic probability of being prosecuted” under the Virginia statute.

We filed one more lengthy brief in opposition, challenging the government’s categorical argument, maintaining that application of the “realistic probability” test articulated in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) – which was adopted by Silva-Trevino – was improper, and noting that DHS cited no authority for its contention that every conviction under Va. Code §18.2-67.5(c) is inherently a moral turpitude crime. Again DHS did not reply, and we anxiously anticipated a ruling at the next MCH in November.

But the IJ was finally persuaded and apparently didn’t need to hear any more. He granted our motion to terminate, found that DHS had failed to sustain its charges of removability, and terminated proceedings. After a 2½ year struggle, including seven hearings in Immigration Court, a failed DHS appeal to the BIA, habeas corpus proceedings in ED Va., and numerous rounds of briefing and re-briefing, we finally prevailed. Our client can now move on with his life, refocus on work and family, and put this agonizing chapter behind him. A very satisfying victory for the Benach Ragland team.

Victory in 2d Cir., Court Scolds Gov’t for its Stance on Prosecutorial Discretion

10 May

On May 1, 2012, the U.S. Court of Appeals for the Second Circuit issued a decision in Akinsade v. Holder, No. 10-062-ag, 2012 U.S. App. LEXIS 8835 (2d Cir. May 1, 2012). The Court granted our petition for review and vacated the BIA’s decision finding our client to be an aggravated felon and ordering him removed to Nigeria. In a unanimous opinion, the Second Circuit held that our client’s conviction for embezzlement by bank employee in violation of 18 U.S.C. §656 did not qualify as an aggravated felony “offense involving fraud or deceit” as defined in INA §101(a)(43)(M)(i), because Mr. Akinsade never “actually and necessarily pleaded” to facts sufficient to establish that he committed the crime with a specific intent to defraud. Because 18 U.S.C. §656 is a divisible statute — and guilt can be established by proving either a specific intent to defraud or a specific intent to injure the employing bank — the Court applied a modified categorical approach and examined the underlying conviction record, including the transcript of plea colloquy. Although Mr. Akinsade accepted responsibility and admitted guilt during his Rule 11 plea hearing, the Second Circuit agreed with our arguments that the record fails to establish he “actually and necessarily pleaded that he acted with an intent to defraud or deceive.” According to the Court, the IJ and the BIA merely inferred that Mr. Akinsade acted with a specific intent to defraud and, athough this inference may have been reasonable, it was inadequate to establish removability under the modified categorical approach.

The Court also strongly admonished the attorney from DOJ’s Office of Immigration Litigation (OIL), who stated during oral argument that ICE would be unlikely in this case to exercise prosecutorial discretion under the Morton Memo, because Mr. Akinsade had appealed his removal order and filed a coram nobis petition challenging his criminal conviction. The Second Circuit declared: “We would be troubled if indeed it is the government’s position that petitioners will be penalized for exercising their legitimate rights to pursue their arguments fully.”

A terrific victory for our client and a valuable new precedent in the Second Circuit, which now joins the Third Circuit in finding that an embezzlement conviction under 18 U.S.C. §656 is not necessarily an aggravated felony under INA §101(a)(43)(M)(i). See Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002).

The decision has also generated considerable publicity in the media, including the Wall Street Journal Law Blog, Reuters, and Bender’s Immigration Daily.



Human Dignity

23 Jan

I’ve been thinking a lot about human dignity lately. I am increasingly struck by how many of this country’s so-called leaders treat immigrants – particularly the undocumented ones (a.k.a. “illegal aliens”) – and it occurs to me that such hostility is borne not merely of ignorance, or fear, or a lack of empathy. What’s really shocking is the cavalier manner in which so many politicians, pundits, and even average Americans seem to regard immigrants as undeserving of human dignity.

Take, for example, Mitt Romney, the presumptive Republican presidential nominee.  Romney recently secured the endorsement of Kris Kobach, author of Arizona’s S.B. 1070 anti-immigration law and a virulent and unapologetic immigrant-hater. Romney gushed:

I’m so proud to earn Kris’s support. Kris has been a true leader on securing our borders and stopping the flow of illegal immigration into this country. We need more conservative leaders like Kris willing to stand up for the rule of law. With Kris on the team, I look forward to working with him to take forceful steps to curtail illegal immigration and to support states like South Carolina and Arizona that are stepping forward to address this problem.[1]

If Romney and Kobach and Dan Stein and Sheriff Joe and all the other immigrant bashers were to have their way, we would deny the country’s burgeoning immigrant population not just employment, or education, or healthcare, or opportunity – but simple human dignity.

John Rawls wrote:

Once the conception of justice is on hand … the ideas of respect and of human dignity can be given a more definite meaning. … [T]o respect persons is to recognize that they possess an inviolability founded on justice that even the welfare of society on the whole cannot override. It is to affirm that the loss of freedom for some is not made right by a greater welfare enjoyed by others.[2]

My own philosophical mentor, the American pragmatist Richard Rorty, contemplated morality and humanity in terms of “human solidarity.” Rorty wrote:

The view I am offering says that there is such a thing as moral progress, and that this progress is indeed in the direction of greater human solidarity. But that solidarity is not thought of as recognition of a core self, the human essence, in all human beings. Rather, it is thought of as the ability to see more and more traditional differences (of tribe, religion, race, customs, and the like) as unimportant when compared with similarities with respect to pain and humiliation – the ability to think of people wildly different from ourselves as included in the range of “us.”[3]

And I began thinking about how many Americans view this large (and growing) class of individuals in our society as “the Other,” as persons undeserving of compassion or respect. Yet, don’t we share a great number of similarities with these more recent arrivals to the American experiment? No matter how we got here, it seems we pretty much all desire the same things: a safe place to live and raise our families, the opportunity to work and earn a decent wage, the chance to send our kids to good schools so that they can aspire to – and even achieve – more than their parents, and also to be treated justly and with respect. In short, to be recognized as deserving of human dignity. Yet these shared similarities, which ought to unify us and help bridge the divide between the “been here for awhiles” and the “just recently arriveds,” are being drowned out by the shrill cries of “Different! Other! Illegal!” that we hear daily in stump speeches and on hate radio and from Fox News.

The national animosity isn’t reserved for the stereotypical law-breaking border-crosser, and it doesn’t appear much affected by how long a person may have lived here, how many of his family members reside in the U.S. (and how many of them are citizens or green card holders), what he has contributed through his labor (whether as a lettuce picker or a software engineer), how much he’s paid in taxes, or contributed to his community, or looked out for his neighbors. Unless his papers are in order and he has strictly adhered to our erratic and ill-conceived immigration laws, this person apparently doesn’t merit a shot at the American dream.

So is the kind of respect and solidarity that Rawls and Rorty advocated possible in the current political climate? Is it even conceivable? Can we, as a community of humans, tolerate and even embrace these wildly different “others”? I believe we can. Having reflected on it, I’m convinced that solidarity and treatment of our immigrants (even the “illegal” ones) with dignity is achievable in at least one realm of American society: the law.

Justice William J. Brennan referred to human dignity as “the basic premise upon which I build everything under the Constitution.”[4] As he tirelessly battled against the death penalty and championed the rights of criminal defendants and prisoners, Brennan characterized “the dignity and worth of the individual” as the “supreme value of our American democracy.”[5] Although the concept has enjoyed a decidedly less prominent role on the Court in recent years, none other than the resolutely moderate Justice Anthony Kennedy has taken up the cause, and has been described as the Court’s “leading invoker of human dignity.”[6] Do we dare to hope for the concept’s return to prominence in the hands of recent additions like Justice Sonia Sotomayor, or Justice Elena Kagan, or possibly others whom President Obama will nominate during his second term? Might human dignity even inform the discourse in the Court’s looming immigration battlefront, particularly Arizona v. United States, which is set to be argued later this term?

Like Rorty, I believe that the greater our capacity to treat the Other (read “immigrants”) in our midst with dignity and compassion, the greater our human solidarity, and the stronger our democracy. Rorty urged, as a historical progression toward greater human solidarity,

the inclusion among “us” of the family in the next cave, then of the tribe across the river, then of the tribal confederation beyond the mountains, then of the unbelievers beyond the seas (and, perhaps last of all, of the menials who, all this time, have been doing our dirty work).

Sounds appealing, but how to accomplish such a lofty goal? I maintain that it has to be through the law. Unlike Justice Brennan, though, I don’t believe that restoring human dignity to a central role in the debate requires an appeal to the individual’s “essential dignity and humanity.”[7] Rather, we can foster the dignified treatment of immigrants in the same way that, as a nation, we have struggled to overcome injustice and inequality based on race, gender, religion, sexual orientation, and so many other differences that have divided us: through the rule of law.

                A search of Supreme Court jurisprudence turned up 64 references to “human dignity,” principally in cases involving the death penalty, prison conditions, and unreasonable search and seizure, but also in civil rights. In Heart of Atlanta Motel v. United States, Justice Goldberg affirmed that “[t]he primary purpose of the Civil Rights Act of 1964 … is the vindication of human dignity.”[8] He denounced “the deprivation of human dignity” produced by racial discrimination, which he described as “the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.”[9] What about because of his immigration status? Just last term, in Ashcroft v. al-Kidd, Justice Ginsburg condemned the “brutal conditions” of Al-Kidd’s confinement in federal custody and declared the “need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”[10] For immigrants, these times are unquestionably perilous.

It’s time to introduce human dignity into the immigration debate. Though a vexingly difficult concept to define, it could prove a powerful organizing principle – one that appeals to our most deeply held values of justice, compassion, and respect for the individual. Might human dignity be a factor in the Supreme Court’s consideration of the pending immigration disputes? Time will tell. Regardless, I intend to incorporate the concept in my legal briefs, my courtroom arguments, and my discussions with allies and opponents alike. Because treating immigrants as deserving of human dignity, and vigorously opposing the wave of anti-immigrant laws and policies that are sweeping through the country, can only strengthen the republic.

-Thomas K. Ragland

[2] Rawls, A Theory of Justice, p. 513 (Harvard Univ. Press 1971).

[3] Contingency, Irony, and Solidarity, p. 192 (Cambridge Univ. Press 1989).

[4] Stern and Wermiel, Justice Brennan: Liberal Champion, p. 418 (Houghton Mifflin Harcourt 2010).

[5] Id.

[6] Id. at 545.

[7] Id. at 418.

[8] Heart of Atlanta Motel v. United States, 379 U.S. 241, 291 (1964) (Goldberg, J., concurring).

[9] Id. at 291-292 (citing S. Rep. No. 872, 88th Cong., 2d Sess., 16).

[10] Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2089 (2011) (Ginsburg, J., concurring).