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Feliz cumpleaños abuela

1 May

Today, May Day, would have been my grandmother, Marta Socarras y San Martin’s 94th birthday.  She was born in Havana in 1919 as the world witnessed the violent death of kingly empires and the birth of communism as a state philosophy.  How odd it seems that an ideology that gripped workers and soldiers in Europe would one day take hold on a non-industrial island in the Caribbean.  In many ways, communism was an accompaniment to my grandmother’s life.  Born less than two years after the ten days that shook the world, my grandmother saw the entire arc of communism’s influence from a nascent and vulnerable state to an ideology that gripped much of the world and eventually took over her homeland and to its death whimpers as Russia and China abandoned it.  I smile to think of what my grandmother would have thought of today’s heirs to communism- Chavez, Morales and Maduro. Payasos.

Fidel

My grandmother lived an extraordinary life.  Born to one of the great Latin American families– yes, that San Martin— with roots in the Americas with the first Spanish explorers, my grandmother had many advantages as a young woman in Cuba as many as a woman could have in early Twentieth Century Cuba.  She graduated from the University of Havana with a law degree in 1941, about thirty years before U.S. schools regularly admitted women.  Her diploma hangs on my office wall.  She served as a district attorney in the provinces and carried a revolver on her rounds.  Anyone who thought that they were messing with a defenseless female was in for a rude shock.  Nonetheless, she was always a lady, horrified about the idea of leaving the house without lipstick.  In 1959, she shared the jubilation of all Cubans when Batista was driven from power by these mysterious bearded men from the mountains.  In fact, during the early days of the Revolution, the new regime held a parade.  The column of tanks and soldiers moved down Calle 23, a major thoroughfare.  When the tank carrying Fidel Castro and his leadership passed the home of my grandmother’s uncle, where the whole family had gathered to watch the parade, they lowered the tank’s gun and saluted the home of Manuel Costales, my great grand uncle and a major anti-Batista politician.  Yet, when the nature of the revolution became clear, my family left Cuba one October, never again to stroll the Prado or the Malecon, or the beach at Varadero.

Malecon

Instead, they settled into New Jersey and this was where my grandmother showed what she was made of.  With an elderly mother, two young boys (my father and uncle), an infirm brother and a worthless husband (not my grandfather, her second husband.  After him, she was done with husbands), my grandmother went to work at rebuilding her family and her life in el norte in October 1959.  I always wonder how that first winter must have felt, although most Cuban women of her generation and station had mink coats for their shopping trips to New York.  But living in New Jersey was a whole new life and nothing in her life in Cuba could have prepared her for the new challenges exile would present.  Her education and pedigree meant little in the U.S., and all she had to rely upon was her own ganas, which she had in buckets.  During the early years in the U.S, my grand uncle was often traveling with the U.S. government throughout Latin America discussing the Cuban revolution with intellectuals.  My great grandmother was nearly eighty and my father and uncle were teenagers facing school in a new country and language.  My grandmother was forty, my age, and had to reinvent herself.  At that point, my family history turns from pedigree and privilege to struggle and striving.  Fluent in English, my grandmother found work as a Spanish teacher at Verona High School and also taught Berlitz after school (“they had one chair- for the student”).  White and educated, I can not say that my grandmother’s experience is the typical immigrant experience (as a friend says “Cubans get a green card and a parade in Miami when they come.”)  However, the need to reinvent oneself to support a family, the need to pursue opportunity where it may lie, and to find shelter from persecution are universal themes of the immigrant story.

Like most immigrants, my grandmother worked her hands to the bone while supporting her sons, brother and mother.  At one point, both my grand uncle and my great grandmother were simultaneously hospitalized with heart attacks and neither knew about the other.  Imagine the strain that put on my grandmother.  She put my father into the position to earn his Ph.D. and become an internationally celebrated scientist, which gave me the chance to do the work I do with immigrants.  In an irony on par with my grandmother’s birth on May Day, I was the first family member born in the U.S., and I was born on July 26, the symbolic starting date of the Cuban Revolution.  I don’t know whether that even registered at the time with my grandmother who was too busy flush with joy and excitement over her first grandchild.  Always, family and love were more important than politics to my grandmother.

My grandmother outlived communism and has left a legacy of four grandchildren and three great grandchildren, who were lucky enough to share a little time on earth with her.  I thought about putting a photo of my grandmother up in this blog, but she hated photos of herself.  Like her immigrant life in America, she kept the focus off herself and gave her all to her family, who she carried on her back into this new world without Castros, Maos, Stalins and Ches.

Could Bar Rafaeli seek asylum for refusal to join the Israeli Defense Forces?

19 Mar

Bar Refaeli Host a 'Lexus' Party in Madrid

Yesterday, we had some fun noting that Israeli supermodel Bar Rafaeli had drawn the rhetorical fire of the Israeli Defense Forces (IDF) due to her failure to serve the two years of service in the IDF required of all Israeli citizensWe offered Ms. Rafaeli a free consultation so she could consider a claim to asylum on account of forced conscription into the Israeli Army.  As far as we know, she has not yet availed herself of our very generous offer.  So, we will share our thoughts here for her to review in the privacy of her home.

However, it did occur to us that many people are unaware of how conscription laws worldwide may impact eligibility for asylum.  Many individuals have obtained asylum in the U.S. due to their philosophical refusal to serve in their home country’s armed forces.  As a general rule, asylum law starts from the proposition that a nation has the right to conscript its citizens into the armed forces.  Conscription is the common practice in which a country forces its citizens to serve the armed forces.   Refusal to accept conscription into the armed forces is not ordinarily sufficient to establish that one is a refugee deserving of asylum.  However, asylum law recognizes two exceptions to this general rule.  First, conscription into the armed forces may constitute persecution if punishment for refusal to accept conscription is meted out exclusively to individuals based upon their race, religion, nationality, political opinion, or membership in a particular social group.  So, if only members of one religion in a religiously pluralistic society were punished for refusal to serve in the armed forces, that may constitute persecution.  The second exception is where service in the armed forces would require the individual to commit war crimes or crimes against humanity.  If the armed forces were routinely engaged in war crimes or crimes against humanity, the punishment of an individual’s refusal to serve may also constitute persecution worthy of protection under U.S. asylum law.

How do these factors effect the Bar Rafaeli case?  As an aside, we have no reason to believe that Ms. Rafaeli did not serve in the IDF for philosophical or political reasons.  We have no reason to believe that the Israeli government seeks to punish Ms. Rafaeli.  We just think that this is a fun intellectual exercise.  If Ms. Rafaeli were actually facing punishment for her refusal to join the IDF, could she obtain asylum in the U.S.?

As we said earlier, conscription, in and of itself, will not serve as a basis for a claim to asylum.  The first exception to this rule, if punishment for refusal to serve is forced only upon certain groups of individuals in a society, does not seem to apply as Israeli conscription is universal and there is no evidence that punishment for refusal to serve is forced only upon particular races, religions, nationalities, political groups, or members of particular social groups.  The second exception to the rule is if conscription into the IDF would force Ms. Rafaeli to engage in human rights abuses.  Certainly, there are many armed forces worldwide that commit war crimes and crimes against humanity.  Right now, the Syrian Army is engaged in war crimes and crimes against humanity on a daily basis.  Years ago, we won asylum for a Russian man who reserved to serve in the Russian Army due to the activities of the Russian Army in Chechnya.

Does the IDF fit this mold?  Can it be shown that the IDF engages in war crimes or crimes against humanity?  How does this work?  This exception implicates one of the epic immigration cases of all time: M.A. v. I.N.S., 899 F.2d 304 (4th Cir 1990).  This case was argued before the entire Fourth Circuit Court of Appeals in October 1989.  Arguing for the immigrant, a Salvadoran who refused to join the Salvadoran army during the peak of that country’s vicious civil war, was William van Wyke, a passionate defender of immigrant rights who went on to become an immigration judge.  Also involved was John Bolton, who went on to become a prominent figure in the George W. Bush administration.  Arthur Helton, one of the great human rights lawyers of all time and a victim of the attack on the UN compound in Iraq in 2003, also supported the immigrant.  M.A. was a Salvadoran man who refused to join his country’s military because of the Salvadoran military’s shameful record of gross human rights abuses.  He argued that if he did not resist conscription he would be forced to commit such atrocities or be killed for refusing to do so.  He submitted voluminous reports showing from Human Rights watch, Amnesty International and other highly credible human rights organizations to document the military’s role in these atrocities.  Yet, the Board of Immigration Appeals and the 4th Circuit rejected this evidence and demanded that there be international condemnation by other governments to establish the violations of the law of war or the commission of crimes against humanity.  Non-governmental organizations, even those with decades of expertise in human rights issues and researchers ion the ground, could not provide evidence that would satisfy this standard.  As the U.S., at the time, failed to condemn the Salvadoran military for these atrocities, M.A. lost.

So back to the question: Could Ms. Rafaeli prove that the IDF is engaged in violations of the law of war or the commission of crimes against humanity?  Certainly, there are many NGOs that would say that the IDF does.  But has there been governmental sanction of the IDF?  While the U.S. has condemned the building of settlements in the occupied territories, the U.S. has not condemned the IDF’s actions against civilians during military excursions in Gaza and Lebanon.  Moreover, the U.S. has used its power to stop the U.N. from condemning Israel.  We are not expressing an opinion on whether the IDF has committed crimes against humanity.  However, we do note that there is plenty of information that indicates that this is the case, while at the same time noting that the U.S. government has not accepted such criticism.  These facts seem strikingly similar to the situation in M.A. where the NGOs were vociferous in their condemnation fo El Salvador, but the governments were more restrained in their criticism.  The BIA and the 4th circuit deemed this insufficient to establish that an individual conscripted into the armed forces would face persecution and Ms. Rafaeli would likely fail to gain asylum as M.A. did.

DACA, Provisional Waivers, and de Osorio?

4 Jan

nancy_just_say_no1

The publication of the rule allowing for processing of provisional waivers for unlawful presence in the United States was another act of administrative rule-making that the President has undertaken to make the immigration laws more humane.  Over the past year, the effort at prosecutorial discretion, the introduction of Deferred Action for Childhood Arrivals (DACA), and the provisional waiver have created a much improved immigration system that attempts to solve real immigration problems for families.

The President has been justly criticized for an enforcement-only approach to immigration.  It is clear that, early in the first term, the White House miscalculated in believing that if it demonstrated that it could enforce U.S. immigration law, it could persuade Republicans in Congress to support sensible immigration laws.  It did not work.  Despite record removals, many members of Congress labor under the fallacy that the President has refused to enforce immigration laws.  As the intransigence of Congressional Republicans made any meaningful immigration reform an impossibility, the administration has taken significant steps to make the immigration system better.

And make no mistake- these steps taken by the administration have made the immigration system better.  Critics can cite the low numbers of cases where prosecutorial discretion has been applied and the individual instances where prosecutorial discretion has been refused where it seems like the individual fit within the criteria.  The systems have not been perfect, but they are improved.  If one case was terminated as a result of memoranda issued in the past year, a benefit was received.  In the past, a request for the exercise of prosecutorial discretion was a last ditch and usually fruitless effort reserved for the saddest of cases.  It is now a routine part of representation and utilized successfully in cases where the law provides no options for relief.

In addition, I have seen the exercise of prosecutorial discretion bleed into areas other than the termination of cases.  I have seen the government agree to join motions to reopen to allow the spouses of citizens to adjust their status in the U.S.  This was a rarity before.  I won’t go so far as to say that they are regularly joined these days, but I have had more joined in the past year than in the previous five years.  DACA has been an amazing experience. Watching all of these kids get a chance to go to college or put their education to work has been an inspiration.  The country has benefited tremendously from the energy and vigor they have brought to our communities when the smallest of welcome was extended to them.

Finally, the provisional waiver will allow families to regularize their status without the risk of long term separation.  Thousands of families have refused to risk separation and have thus continued with one partner without status fearful of being stopped by the police and unable to find meaningful work.  The provisional waiver process should allow thousands of undocumented immigrants to get their residence properly.

The President has done this in the face of a hostile Congress colluding with an insubordinate agency.  ICE bureaucrats have been in open rebellion against liberalized immigration policies since the beginning of the President’s terms.  They have teamed with their Congressional supporters to accuse the administration of everything from allowing jihadis to roam free to making cynical ploys for Latino votes.  Luckily, these rear-guard actions have failed.  They are the death shrieks of a disappearing order, where once can say of Joe Arpaio, Russel Pearce, Kris Kobach, and Steve King, as Bob Dylan once did, “something is happening here, but you don’t know what it is.

While there are countless other administrative actions that the administration can take, another step that would further demonstrate the administration’s willingness to place family unity and sensible immigration policy over “the way things have always been,” would be for the administration to forgo Supreme Court review in de Osorio v. Mayorkas, the decision of the 9th Circuit Court of Appeals that allows the unmarried sons and daughters of permanent residents who aged out of eligibility under petitions for their parents to receive credit for the time they waited under their parents’ petitions.  In de Osorio, the 9th Circuit joined the 5th Circuit in Khalid v. Holder rejecting the Board of Immigration Appeals decision in Matter of Wang.  Both Courts of Appeals decided that the plain language of the  Child Status Protection Act allowed kids who aged-0ut of eligibility under petitions filed for their parents to recapture the time that they waited when their parents, now permanent residents, filed petitions for them.  In Matter of Wang, the Board decided that the kids could not recapture that time and would have to go to the end of the line.  This resulted in what one brief in de Osorio calculated would be a 115 year wait for an unmarried adult son or daughter of a Mexican citizen!  The de Osorio decision has the potential to help ensure family unity for thousands of families where parents and minor children have received residence, but one or two older children aged-out.

The de Osorio decision came down on September 26, 2012 and the next stop for review is the Supreme Court.  The government has sought two extensions to decide whether to appeal to the Supreme Court.  As of now, their petition for Supreme Court review, known as a petition for a writ of certiorari, is due on January 26.  If the government files a petition, the Supreme Court may or may not take the case.  However, the de Osorio case will likely not take effect until the Supreme Court decides whether to take the case.  If the Supreme Court takes the case, then we will have to wait until the Supreme Court decides the matter before we know anything further.  If the Supreme Court does not take the case, the de Osorio case will take effect and many people will become eligible for adjustment of status.

Of course, the government does not have to file a petition for a writ of certiorari.  They did not seek certiorari in Khalid.  Moreover, WHY??  Why appeal this?  What is the possible compelling interest for the government?  The de Osorio decision allows the sons and daughters of permanent residents who waited in line with their parents only to lose their eligibility due to lengthy delays in the immigration process to rejoin their families.  How does the government have an interest in avoiding that happy result.  Immigration law has always been anchored in the concept of family unity?  Prosecutorial discretion, the provisional waiver and, to a lesser extent, DACA, reflect principles of family unity.  By letting the de Osorio decision stand, the administration can once again signal its firm alliance with immigrant families.

As one former President said, on a petition for cert, Mr. President, “Just say no!

This is Personal

30 Nov

One of the burdens I carry is the knowledge that I come from one of the country’s anti-immigrant hotspots.  No, I am not from Arizona, Alabama, Postville, Iowa  or Hazelton, Pennsylvania.  I grew up in Suffolk County on the eastern end of Long Island, New York.  While Suffolk County never passed laws like Arizona’s infamous SB 1070 or Alabama’s even more odious HB 56, Suffolk County gained notoriety for an even more loathsome practice– extreme violence against immigrants.

This phenomenon really got underway in 2004 when Israel Perez and Magdaleno Escamilla, day laborers from Mexico, were lured to a basement in Farmingville, NY with the promise of work where they were beaten and stabbed.  This hate crime occured as local anti-immigrant organizations used more and more inflammatory rhetoric against immigrants and aligned themselves with well-known white supremacists such as Glenn SpencerPBS sponsored a documentary about the violence and its aftermath:

Watch Video | Farmingville: Trailer | POV | PBS.

In 2008, Ecuadorean Marcelo Lucero was stabbed to death on the streets of Patchogue, New York.  Mr. Lucero was walking down the street, when he was attacked by a group of young men who went out to “beat on some Mexicans.”  This episode introduced the world to the practice of “beaner-hopping,” which is an activity where young men would find Hispanic men and beat them in the street.

During much of this time, the County Executive for Suffolk County was a despicable little troll named Steve Levy, who sought national prominence by bashing immigrants at every turn.  Rather than manage the affairs of his county, Levy attacked immigrants, changed parties and sought the Republican nomination for governor.  Levy assumed that he could ride his harsh rhetoric to Albany and never considered whether his words may have contributed to the climate that killed Lucero.   His huge campaign warchest was not enough to buy the nomination for governor and Levy declined to seek another term as executive, handing over $4m in campaign funds to the District Attorney, all but acknowledging serial corruption.

Suffolk County has a new executive, who signed an executive order earlier this month requiring agencies to translate official documents into several languages.  The county has 1.5 million residents, 20 percent of whom speak languages other than English at home. Interestingly, these are the languages other than English most commonly used in Suffolk: Italian, Mandarin, Spanish, Polish, French Creole and Portuguese.

That Levy would be out of office, Lucero’s killer in jail, and Suffolk residents contributing to the re-election of the President committed to immigration reform shows that, even in the darkest corners, the sun light can come in.  I am very relieved.  Mo Goldman, help is on the way!

Meet a DREAMer- Roxana and Silvana Bedia

6 Nov

We are starting a new series here at Benach Ragland to introduce our readers to some of our clients who have sought and obtained Deferred Action for Childhood Arrivals (DACA) benefits.  We profile these extraordinary young people who make up our community, contribute to its richness and have exemplary talents to offer to demonstrate the many good reasons to support the DREAM Act and common sense immigration reform.

Over the summer, all of us here at Benach Ragland were lucky to meet a couple of outstanding DREAMers, when Roxana and Silvana Bedia visited our offices from West Palm Beach, Florida with their parents.  They were doing the obligatory trip for all American families- trudging through the muggy heat of a Washington summer to visit the monuments and memorials to American history.  They made time to visit us.  For the first time in their twenty years in the United States, Roxana and Silvana had hope that this country would accept them, if not as quite completely as they have accepted their adopted homeland.

Their father was an economist in Peru, when things went off the rails there.  Eager to give his family a chance at a future without the Shining Path, the Tupac Amaru and Alberto Fujimori, the Bedia family made the great leap to el norte.  Silvana was just six years old, and Roxana, three.  They barely have memories of Peru.  Their parents struggled to build a life for them in the United States.  Their mother left a professional career at a bank in Peru.  The only one in the family with English skills, Mrs. Bedia became the breadwinner, working all day as a secretary and late into the night at a grocery store.

The sacrifices made by their parents paid off as Roxana and Silvana thrived in the U.S.  They gained admittance to a magnet school in law enforcement.  Both women intend to pursue careers in law enforcement.  Roxana attended the University of Florida and got a degree in Political Science/ Criminology with a minor in American history.  She wants to go to law school to become a prosecutor.  Silvana went to the University of Central Florida, where she majored in Criminal Justice- Crime Scene Investigation.   Silvana also wants to go back to school—not to become a lawyer, but to deepen her understanding of forensic science.

As Roxana and Silvana have waited for relief from their immigration status, they have put their talents to good use.  They both work at a rural health clinic where they help deliver medical care to a highly vulnerable population.

Roxana and Silvana have a lot to offer this country.  Both women have outstanding potential to contribute to their community and both have sought a life of public service.  With the recent approval of their DACA applications, Roxana and Silvana will be given the tools they need to make their contribution.  We have been honored to have the opportunity to get to know the fabulous Bedia sisters.

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.

Re-Connecting with Dariusz Gilman

24 Sep

Every Tuesday, my children’s school publishes a newsletter that includes a number of advertisers.  Tutors, babysitters, coaches all advertise to the parents of the schoolchildren.  Last week, I noticed a different ad from all the others.  Fencing was being offered and I was happy to see that the coach offering fencing was my old client, Dariusz Gilman.  I represented Dariusz a long time ago and was delighted to see that he has opened up his own fencing school in Silver Spring, Maryland, Dariusz Gilman Sabre Fencing.  On Saturday, I took the kids to watch a class and get some tips from Coach Dariusz and I am happy to say that Coach Dariusz has two new pupils eager to learn to fence.

Dariusz is a remarkable individual.  This is not only  because he is willing to spend an hour with a dozen seven-year-olds armed with swords, but because he has made the difficult transition from athletic championship to instilling in American children a love for a fairly obscure sport.  Dariusz is a former Polish national champion and was a European junior champion.  He has over a decade of experience training American kids in fencing and his students have become NCAA and United States Fencing Association champions and finalists.  Dariusz brings energy and joy to his students and, most impressively, holds their attention for a good hour.  Dariusz does not do fifty minute hours.

Watching all these American children learn from Dariusz and his coaches reminds me of why we work in immigration.  Having a fencing school in Silver Spring enriches our community.  Dozens of kids have found a calling or an outlet in fencing and, if it were not for Dariusz’ ambition to bring the sport he loves to America, this opportunity would have been lost.  More practically, I am reminded of the many studies that show that immigrants open businesses at a far higher rate than native-born Americans.  Immigrants start one in four new businesses in America.  It is well known that companies like Google, eBay, Intel, Yahoo and YouTube were all started by immigrants, but the bulk of American business is small business like Dariusz Gilman Sabre FencingRecent reports show that immigrants have started 18% of all small business, way higher than their 13% of the general population.

As DREAMers begin to receive their work permits, we should expect no less of them.  Many DREAMers have worked hard and against the odds to realize the dreams of their parents.  They created a political force, established a constituency, and their fate may turn an election.  With a chance to get jobs, finish school, open bank accounts and start businesses, DREAMers will leave an indelible mark on this country.  They carry with them the energy and belief in the American dream that has always defined immigrants to America.

En garde!