Being Careful What You Wish For: Divisible Statutes - Identifying a Non-Deportable Solution to a Non-Citizen\u27s Criminal Problem

This article addresses recent case examples involving convictions that, on their face, seemed to provide an adequate basis of deportability. Convictions under the criminal statutes addressed herein generally appear to encompass deportable offenses, but have been held to be insufficient to assure deportability. Therefore, these examples can serve as templates for analysis of other statutes

Give Me Your Tired, Your Poor…And Your Convicted? Teaching “Justice” to Law Students by Defending Criminal Immigrants in Removal Proceedings

Why do you want to participate in the immigration clinic? I asked the student, the fifth of twelve interviews I was conducting that spring day, as my teaching fellow and I sought to choose the incoming class of eight students for the next academic year. I am just totally committed to human rights, she replied. Her earnestness did not leave any margin of doubt for any of us in the room. The last two years in law school I have been looking forward to this and I am sure I am going to be a professional advocate for human rights once I graduate next year. We talked for a few minutes about her experiences abroad, her familiarity with the asylum application process and her interest in representing victims of persecution. Well, how would you feel if I told you that one of your three clients next year is a non-citizen in danger of being deported because of multiple criminal convictions? I asked. If she was surprised, she did not show it. Her intense, yet upbeat expression did not change. She paused thoughtfully for a moment. Well, everyone has rights. I am sure they do, too. The criminal immigrant question was a regular part of my interviews. Sometimes I asked it a little bit differently, perhaps less directly, so the students would be less likely to know that I was not going to budge from assigning them a criminal immigrant client. We would then likely have some discussion about why I like them to represent this type of case. I always considered this portion of the interview to be a bit of truth in advertising and that it was better for the students to be sure of what type of work they would be committing to if they worked with the clinic (and were rewarded with twelve law school credits) during their final year in school. Our clinic offers a range of services to our clients. Our docket is evenly balanced with asylum applicants, immigrant victims of domestic violence and other crimes, and deportable immigrants with criminal convictions. Before I became director of the clinic, criminal cases were a less significant component of the caseload, which is why I stress the range of cases during the interview. Our law students usually have gained a bit of interview experience by the time they are wrapping up their second years. They also know that we always have a few too many applicants for our Immigration Clinic, so the interviews are part of a somewhat competitive selection process. Like candidates for any job, they are trying to get an offer. They need to earn our invitation, and then they can mull over whether the clinic is a good fit for them and accept or decline their seat. If they decline, I move on to the waiting list. It happens sometimes that the criminal question seems to be a turning point in the interview. Each of the last three years an applicant declined a spot in the clinic. Two of those three I predicted, based largely on their negative reactions to the prospect of having a convicted criminal on their roster of clients. REFLECTION For weeks after the interviews, I had recurring thoughts of my interaction with the student who was committed to human rights. The semester ended and with it the cyclical pressure of teaching, supervising, meeting, planning, filing, and advocating. The school year has a life of its own. I have a finite amount of time to pass on a large amount of skills and information and to prepare and supervise the students in their initial forays into litigation. The students have a large caseload, but with the pressure of court deadlines and our high expectations, they are almost always able to close out their cases or meet their expected progress by the end of the year. Entering the summer, I can decompress from the final flurry of activity and stress, discuss teaching points with peers at professional conferences, and prepare for the next go-around with the new students in the clinic. This year, somehow, felt different to me. I sensed that I needed to better give voice to my reasons for committing my students\u27 limited time and my clinic\u27s limited resources to the representation of criminal immigrants. I do have reasons for this choice. I personally find the cases and clients interesting. The students regularly have very meaningful relationships with the criminal clients, if not initially, then certainly once they fully engage in the cases. I admit that I enjoy the tension of teaching in a setting where students represent innocent victims-of foreign persecution or domestic violence-and also represent perpetrators of wrongdoing. Ultimately, I thought I needed to develop a better answer for my pedagogical choices for developing capable lawyers and consider the goals of the clinic in serving our community. I needed to consider my methodology, goals, and identifiable ulterior motives. I hoped I could see some truth or at least bestow myself with some transparency about why I emphasize the need for students to defend both innocent victims and convicted criminal immigrants. STRUCTURE Teaching immigration defense to clinical law students is usually a very fact-intensive experience, and it is easy to get caught up in details, rather than dedicate time to considering our motivations for undertaking the work. The details can be overwhelming: students must understand, appreciate, and comply with various evidentiary requirements that differ depending on the nature of the relief sought. Each academic year brings a new group of students needing to master the legal framework and tackle the evidentiary challenges of their cases. Asylum applicants must meet strict corroboration requirements, and the cases turn on the issue of credibility.\u27 Victims of domestic violence have similar criteria for showing the good faith nature of the abusive marriage. This is interesting and gratifying work, but the legal issues of discretionary standards and asylum eligibility are largely settled, so there is less of an opportunity for clinical students to present novel legal arguments. Advocacy for non-citizens with criminal convictions turns on issues of facts supporting a favorable exercise of discretion by the immigration judge. Standards for properly gauging the potential for discretion have been pronounced in precedent decisions from the Board of Immigration Appeals. I am interested in challenging criminal grounds of deportability and thus widening the scope of clients who are eligible for immigration relief. As a result, the immigration clinic I supervise litigates cases challenging whether the underlying convictions properly support charges in removal proceedings. This paper addresses the experiences of clinical students pursuing these tasks. Students confront unique legal challenges and also unearth ethical dilemmas when participating in the clinic. Playing off the themes of the article Can You Be a Good Person and a Good Prosecutor?, by Professor Abbe Smith, incorporating examples from recent clinical experience, and providing commentary from the Critical Race Theory movement, I address my role as a clinical teacher training advocates whose clients may be socially vulnerable, but whose cases are, on the surface, less attractive than clients in a clinic that only serves refugees and other immigrant clients who are more readily identifiable as victims. I further seek to establish pedagogical and social merits that are distinct to criminal immigration work and reflect on my own assumptions about the importance of teaching this work to students in a clinical setting. Finally, in my writing process, if not my words, I will try to objectively confront whether my attitude and approach is indicative of the liberalism allegedly embodied in clinical programs or if other theoretical or philosophical labels serve as more accurate monikers for our advocacy

Making Drug-Related Deportability 1914 Again? How a Strict "Categorical Approach" to the CSA Would Eliminate Unpredictable Agency Interpretation of the Immigration and Nationality Act

The Controlled Substance Act ( CSA ) of 1970 serves as a near midpoint for considering a century of drug regulation, dating to the Harrison Narcotic Tax Act (1914), the now-quaint first federal step in this field, i.e. of taxing the sale of (but not outright criminalizing) cocaine and opium. The early cases construing the Harrison Act are similarly anachronistic. Bundled as public welfare cases and including United States v. Balint,\u27 in those early days, the Supreme Court was willing to forego requiring the element of criminal intent to be read into general and novel statutes like the Harrison Narcotic Tax Act, and in Balint yielded to apparent congressional wisdom to punish controlled substance violations without an impediment of traditional mens rea. This logic would seem to have been explicitly \u27firewalled to its bygone era by Morissette v. United States (1952), particularly in light of the modern, comprehensive CSA subsequently clearing the field in 1970. Convicted immigrants only wish they were so lucky. In a parallel track, use of the categorical approach in modern criminal and immigration\u27 law has evolved to require strict comparison of federal and state definitions of criminal offenses in order for those offenses to trigger sentencing or deportation consequences. This implies that both state drug offenses and drug definitions also require a literal federal analogue, under the CSA, to prompt collateral federal treatment. Again, convicted immigrants only wish it were so simple. The Board of Immigration Appeals (BIA), part of the U.S. Department of Justice, has repeatedly invoked the public welfare cases to justify removal of immigrants for drug offenses in the absence of proof of their criminal intent. In 2019, the BIA had further telegraphed reluctance to requiring strict uniformity in state drug definitions vis-a-vis the federal enumerated standard substance before permitting an immigration consequence to flow from a related offense. The author has written on, and litigated-both successfully\u27 and unsuccessfully,\u27 and in pending matters9 -these issues as both primary counsel and for amici curiae. This article develops the interconnectedness of the above two topics, in order to comprehensively discuss the immigration consequences of drug convictions, particularly as evolved since 1996 and to attempt to reconcile 1) tracks of Supreme Court civil and criminal jurisprudence regarding mens rea and 2) the collision course of the categorical approach with the interpretive principles of Chevron.\u270 In doing so, the article makes recommendations for a more consistently principled, predictable, and uniform intersection of the CSA and the Immigration and Nationality Act (INA). While this paper mostly deals with highly technical explanations of legal theories in the criminal-immigration universe, it should not be lost on the reader just how out of touch the legalese gets from reality. In a way, it is a microcosm of the larger social problem. America\u27s cultural duality is on display-with our aspirational decadence conflicting with our puritanical roots-and we struggle to balance these extreme polarities. If controlled substances were regulated from a holistic public health perspective, if our laws were not so dissonant with our culture\u27s appetites, or even if drugs were taxed (not outright banned) as in 1914, we could avoid much of the technical jousting of the following pages. However, as it is, we have serious legal apex scenarios-criminal sentence enhancements and deportation-in which society\u27s wrath bares down on individuals, typically with consequences disproportionate to the harm (if any) they inflicted upon society. With the stakes so raised, the esoteric legal analysis is the necessary antidote and justified defensive tool to a ludicrously over-punitive, unrealistic, and hypocritical criminal scheme

Being Careful What You Wish For: Divisible Statutes – Identifying a Non-Deportable Solution to a Non-citizen’s Criminal Problem

When a non-citizen is arrested, it may be possible for her to underestimate the full consequences of a criminal charge. The primary concern of the non-citizen is when she may be released from custody in order to resume family obligations or return to work before compromising her standing with an employer. With an immediate need for release from custody, a quick plea to an offense may be an attractive option. The non-citizen may not be aware of the immigration consequences of taking an imprudent plea, the ramifications of which could far outweigh the inconvenience of additional time in jail following an arrest. Many criminal convictions lead to the institution of removal proceedings against the non-citizen with the end result being that she loses her right to remain in the United States. Depending on the offense and the duration of the non-citizen\u27s residence in the United States, a waiver may be available to pardon the deportable offense and restore status in the United States. However, in many cases, the nature of the criminal offense renders the non-citizen deportable as an aggravated felon, from which little relief is available. Alternatively, the non-citizen may not have lived in the United States long enough to qualify for a waiver. Legislation has increased the number of crimes classified as aggravated felonies, and investment in national databases has led to greater apprehension of non-citizens with criminal convictions. Consequently, the number of non-citizens ordered deported from the United States based on convictions for aggravated felonies has also risen, from 10,303 in 1992 to at least 23,065 in 2006.2 This article addresses recent case examples involving convictions that, on their face, seemed to provide an adequate basis of deportability. Convictions under the criminal statutes addressed herein generally appear to encompass deportable offenses but have been held to be insufficient to assure deportability. Therefore, these examples can serve as templates for analysis of other statutes

An Immigration Lawyer Walked into a Barr: The Impact of Trump’s Justice Department on the Defense of Criminal Immigrants

Some may think the legitimate prospect of a Trump political era started in earnest subsequent to the future president being ribbed by President Barrack Obama and roasted by Seth Meyers at the White House Correspondents\u27 Dinner, in jokes primarily fueled by Trump\u27s public questioning of Obama\u27s legitimacy as president and domestic birth. For others, the seminal event-beginning the era-was Trump\u27s slow, unwalking, gliding descent down his gilded escalator at Trump Tower to officially announce his candidacy in an isolationist and xenophobic diatribe. However, I would argue that those moments didn\u27t reflect the real reality of the era, as there was prevailing mystery over not just whether Trump could actually win election on such a paranoid platform, but also over whether he really meant the rhetoric he was feeding to his prospective base voters like so much red meat. The highlights of that rhetoric have been repeated ad nauseum to the point of losing their power to shock: categorically deriding immigrants as rapists and murderers; labeling Federal District Court Judge Gonzalo Curiel, a United States-born child of immigrants, as disloyal and inherently conflicted to sit as a judge; and later wondering why the United States tolerated immigrants from shithole countries (all either African or, like Haiti, populated by African descendants), rather than places like Norway.\u27 But again, it was realistic for observers to believe that this early show was perhaps just a mirage for votes, in the same way that they might believe that a man whose domestic real estate empire sat in the immediate crosshairs of human-caused sea level rise and whose personal history was so objectively salacious couldn\u27t possibly be stridently both anti-climate science and anti-Roe v. Wade? Perhaps the nationalist tone-especially its nostalgia for a day gone by-wasa political game? Soon after the election, the country got the confirmation of Trump\u27s actual views on immigration when long-time immigration hawk Kris Kobach appeared on camera on his way into Trump Tower to consult with the President-elect. In Kobach\u27s hands was a list of talking points, an early blueprint for the nascent administration\u27s immigration playbook, one in which it amplified existing law, published interpretations, and sometimes made even obviously dubious legal cases, all with the unambiguous public purpose of vilifying immigrants and sowing distrust of outsiders, while capitalizing on the available legal room for heightening enforcement and curtailing immigration processing. Thus, inarguably the Trump Era had begun in earnest. Installing immigration firebrand Jefferson B. Sessions, M, as Attorney General, and Sessions\u27s former policy advisor and communications director (and hypocritical immigration extremist) Steven Miller as policy advisor, cemented the branding. Existing hierarchical enforcement priorities were abandoned, so all cases became priorities. Immigration backlogs swelled; racist and paranoid exclusion policies were implemented barring (mostly) the international Muslim community from visiting or immigrating to the United States; family units seeking asylum from Central America were separated and children were detained apart from their parents. Immigration practice became headline material in the popular press. The administration\u27s positions on niche immigration policy issues, formerly the bailiwick of immigration nerds and advocates, such as the Flores settlement agreement (governing the length and conditions of family detainees) were suddenly the material of late-night talk show comedic takedowns. Of course, the administration was undeterred by any negative press. Instead, the administration doubled down, in such measures as: proposing new rules, to be applied retroactively, that would govern how and when foreign students and other non-immigrants triggered unlawful presence that would bar or hinder their immediate immigration options;\u27 announcing a denaturalization task force that would ferret out supposedly high volumes of ill-gotten citizenship; and proposing leaps in application fees and massive increases in the filing fees for appeals.- The scope has been simply breathtaking: the Trump Era has been marked by more than one substantive change to immigration policy every workday that Trump has been in office. Within the Department of Justice is the Executive Office of Immigration Review (EOIR), primarily comprised of a network of 69 immigration courts (and approximately 465 immigration judges), and the EOIR\u27s appellate body, the Board of Immigration Appeals (BIA). These forums, of course, are appointed by and answer to the Attorney General. Attorney General Sessions implemented docket reforms, pairing strict case processing metrics-such as case completion goals/quotas and standards for reviewing performance based on a reversal rate by the BIA-with a restaffing of the BIA by some of the most conservative immigration judges in the country. Simultaneously, the BIA issued decisions limiting the circumstances in which a judge may grant continuances in pending cases and eliminated a judge\u27s authority to administratively close proceedings. 9 Further, the Trump administration slashed refugee admissions, so those fleeing persecution would not be processed abroad and assigned to be received by the United States2;0 meanwhile, the Attorney General and EOIR issued decisions curtailing the eligibility of asylum seekers from the Western Hemisphere, and those who transit through the Western Hemisphere to be eligible for asylum once here, within the physical United States, issuing separate decisions addressing asylum seekers passing through a third country in transit. EOIR further limited or eliminated eligibility for asylum for victims of domestic violence, violence by private actors, and those persecuted based on their membership within a family unit. Not only did the administration create a new vision for asylum in which asylees must be processed while they reside in a third country (Mexico), but it devised a scheme in which immigrants who missed their United States court hearings while residing in a third country pursuant to this policy, could still be ordered removed in absentia. Thus, the entire philosophical self-identification of the United States as a nation of immigrants was, and remains, under question. Actually, in the eyes of the administration, that is not an open question, as even the United States Citizenship and Immigration Services, the services component of the Department of Homeland Security (DHS), has gone so far as to remove that very language from its mission statement. With this metamorphosis of self-image as a backdrop, the remainder of this article will address technical questions and trends in decision-making at the Board of Immigration Appeals. Remember, the initial thesis to draw national attention to immigration was the flawed premise that immigrants are criminals. In reality, of course, there is no objective correlation between immigration and criminality, but that is irrelevant in stoking nationalist fears. Based on cheers of build the wall, the stoking has resonated in some quarters. I would agree that the real motivator of ethnic insecurity is the rapid ethnographic changes via immigration following the Immigration and Nationality Act of 1965, or Hart-Celler Act, which for the first time restricted allocation of western hemisphere immigration, but over time reshaped the ethnic makeup of the United States to a degree unanticipated at its passage. Ironically, national numbers only now approach early twentieth-century highs in terms of the percentage of national population that is foreign born (i.e. there is ample precedent for this level of immigration), but that population is decidedly now largely non-European. The United States Department of Justice (USDOJ) has two primary immigration-related roles: the EOIR administrative court system (the immigration courts and the BIA) and, via the United States Attorneys\u27 Offices, prosecuting immigration-related offenses, including unlawful entry and reentry into the United States. The USDOJ also defends the government\u27s decisions in immigrants\u27 circuit court appeals ( petitions for review ) of removal proceedings. Thus, the optics and reality of the USDOJ are crucial to assuring the public that it is properly entrusted with both its enforcement role and its distinct role as an impartial adjudicative body. Jefferson Sessions certainly clouded this role in a speech vilifying the defense bar and characterizing the EOIR as having an executive role enforcing immigration law, escalating calls for an independent immigration court system. This, finally, brings us to the thesis of the article: beyond the rhetoric, how has this administration actually affected the legal removability of actual criminal immigrants? In other words, just how conservative is the EOIR in the time of President Trump and his DOJ, under the respective leaderships of Jefferson B. Sessions I (February 2017 - November 2018), Acting Attorney General Matthew Whitaker (November 2018 - February 2019), and William P. Barr (February 2019 to present)? More specifically, what trends, if any, can be discerned from canvassing lines of cases regarding the deportability of immigrants who have criminal histories? Finally, being as this article is the end-product of a symposium of Barry University and the Orange County (Florida) Bar Association, I will give special consideration to the Florida implications of those trends. To make the article of more utility to non-experts in the immigration field, some context will establish the essentials of the practice and the legal issues discussed

From Bristol, to Hollywood, to a Land Far, Far Away: Considering the Immigration Consequences of Statutory Rape

A presidential race shines a spotlight on a teenage pregnancy. A teen idol takes a hiatus from her hit television program as she becomes a teen mother. Tabloids fill with confirmed and unconfirmed romances of young celebrities and their (sometimes only slightly) older paramours. At the height of steroid allegations against major league baseball players, an all-star pitcher faces public allegations over a long-running affair with his country music star girlfriend, possibly dating back to when the singer was a child. The Homeland Security webpage and newspapers nationwide fill with details of enforcement efforts against fugitive sexual violators. Troubling news articles about sex offender recidivism cause commentators to call for even tougher laws and enforcement. Meanwhile the Miami newspaper fills with stories of registered sex offenders forced to sleep under a bridge, since zoning ordinances ban them from residing at nearly every other location in town. In addition to the criminal charges and social stigma, noncitizens with convictions for sexual offenses can be deported in several ways. The most onerous classification is as an aggravated felon, a class that is satisfied by having a conviction that constitutes sexual abuse of a minor. Any such conviction after 1996 mandates deportation, and forecloses any application for relief from deportation. Thus, an immigration judge cannot consider any positive equities of the immigrant or sympathetic factors relating to the conviction prior to ordering removal. On its face, this is a very reasonable scheme, one that protects our nation\u27s children and enumerates clear consequences for sexual offenses. However, a number of factors could lead to the conclusion that by mandating deportation the present system is in fact not accomplishing its stated goals. This paper will address the immigration consequences for violating domestic criminal statutes turning on the age of consent for sexual activity. It will subsequently look at trends in enforcement of these statutes. Next, I will address federal decisions construing the immigration consequences attaching to the state court convictions, arising at the Board of Immigration Appeals and the United States Courts of Appeals. Finally, I hope to address whether there could be an alternate model for adjudicating immigration cases that involve statutory rape; one that could adequately account for cultural cues from the non-citizens\u27 own experiences and possibly identify a point for marking a distinction between predatory child abusers and permissive teenagers and young adults where the only abuse in the sexual relationship is implied by the inability to consent

Good Things Come to Those who Wait? Reconsidering Indeterminate and Indefinite Detention as Tools in U.S. Immigration Policy

Detention of deportable immigrants is a major component of the United States\u27 immigration enforcement policy. Our cultural consciousness is rife with examples of detention practice throughout our history and detention is a part of our immigrant tradition. European immigrants passed through Ellis Island quickly unless a reason, usually health-based, was presented to justify detention. This is so pervasive in our national mythology that even the fictional Vito Corleone of The Godfather movies was quarantined at Ellis Island for three months for smallpox infection. As a parallel model, in the early twentieth century the majority of Asian immigrants were processed and potentially detained at Angel Island in San Francisco Bay. In the early 1990s, political instability in Haiti led to a mass exodus of refugees who eventually were housed on the U.S. naval base at Guantanamo, Cuba. In 1993, Chinese migrants from the illfated smuggler\u27s freighter Golden Venture were detained after their ship ran aground offshore of Rockaway Beach, New York. Historically, arriving excludable aliens were not entitled to release on bond, but generally could expect that immigration authorities would generously exercise their parole authority to issue them an identity document and release the immigrants into the United States pending resolution of their immigration applications. In 1996, Congress amended the Immigration and Nationality Act to increase categories of immigrants who would henceforth be subject to mandatory detention, including non-citizens who were either inadmissible to the United States as arriving aliens or returning lawful permanent residents or deportable for security or criminal grounds. From 2001 until 2004, the year in which a coup d\u276tat overthrew Haitian president Jean-Bertrand Aristide for the third time, political conditions in Haiti created another crisis of migration by boat. Haitian refugees (labeled migrants ) interdicted at sea by the U.S. Coast Guard were summarily returned to Haiti. United States immigration authorities instituted a policy that Haitian boat persons who reached the U.S. would not be paroled from detention. Most Haitians applied for asylum and were interviewed by asylum officers (civil servants within the Department of Homeland Security\u27s department of Citizenship and Immigration Services) for a determination if they had a credible fear of asylum that merited full review by an immigration judge. The release rate for Haitians who were found to have a credible fear of persecution dropped from 96% in November 2001 to 6% between December 14, 2001 and March 18, 2002. As arriving aliens ineligible for bond, the Haitians were forced to fight their asylum cases, including any appeals, from within the confines of a detention center. The decreased exercise of parole authority was further reinforced by decisions of the U.S. Courts of Appeal finding that parolees were entitled to the right of adjustment of status. The INA provided for this right, but the implementing regulations, later determined to be ultra vires by the courts, excluded parolees from eligibility. Although the court victories helped gain permanent status for those who were paroled previously, subsequent requests for parole have been largely denied. In addition to mandatory detention while cases are pending, successful applicants for relief under the United Nations Convention Against Torture (CAT) may also be detained indefinitely following their immigration court victories, as a result of prior criminal convictions. CAT is typically either a tool for applicants who face harm that is not on account of\u27 a protected fundamental right or an application of last resort for immigrants with severe criminal violations that are thereby ineligible for any other form of relief from deportation. In the latter instance, the alien\u27s relief\u27 and detention may last as long as the alien\u27s tolerance of detention in the United States outweighs his fear of torture in his home country. Finally, historically the term indefinite detention was reserved for a class of criminal immigrants whose deportation was impossible, typically because of a lack of diplomatic relations with the home country or because of a foreign country\u27s individualized case assessment and denial to accept the deportation of a national of the country. Criminal immigrants ordered deported might languish in a jail or detention center for months or years, since the deportation could not be executed. Litigation and Supreme Court precedent produced a scheme for preventing indefinite detention in most situations, so contemporary cases can use habeas corpus lawsuits to prevent or challenge indefinite detention. This article will primarily focus on illustrating examples of lengthy detention that surely seem unending to the immigrants involved, if not indefinite as determined by the U.S. Supreme Court. I will address all other aspects of detention more fully than actual indefinite detention. Detention is one of many tools at the disposal of DHS to assure orderly immigration and provide predictable consequences for violators of the United States immigration system. I hope to illustrate the frequently coercive affects of the detention scheme and argue that in some, if not many, contexts detention actually impedes the orderly administration of justice, despite its assumed use to guarantee such orderliness. Finally, I subscribe to the usefulness of the scholarly techniques of the Critical Race Theory movement, particularly the use of storytelling to elucidate a legal problem, so narrative vignettes will appear throughout this article. The subjects of the narratives are undocumented immigrants, immigration violators or criminal immigrants, each classification progressively more onerous to many members of society. The narratives are used to provide a concrete illustration of a concept and each narrative is likely representative of hundreds of similar cases. The cases discussed herein are somewhat sanitized versions of actual facts. It is my hope that in depicting actual circumstances I can give voice to a politically weak constituency and show that the function of law unduly prejudices many immigrants, despite detention appearing facially as a reasonable component of U.S. immigration policy

Is Your Client Prejudiced? Litigating Ineffective-Assistance-of-Counsel Claims in Immigration Matters Arising in the Eleventh Circuit

The process of adjudicating asylum claims in the United States entails a graduated system of hearings. The first opportunity to present a case is before an asylum officer-a civil official-who conducts an interview with minimal participation by the applicant\u27s attorney. If unsuccessful, the applicant renews the application defensively in removal proceedings before an immigration judge-an administrative official within the Department of Justice. The hearing is an adversarial setting where the attorney for the applicant advocates against an attorney from the Department of Homeland Security\u27s Office of Chief Counsel. Counsel is generally necessary to present an effective case before the immigration court and on any appeal to the Board of Immigration Appeals. The U.S. system represents the necessary tension between the guiding principles of refugee law, known as nonrefoulement,2 and the rigorous examination by officers, judges, and counsel striving to ensure that the applicants satisfy requirements of credibility, corroboration, and a sufficient legal theory that mandates relief. It is axiomatic that an asylum applicant has no experience in navigating the complexities of this system. Consequently, the applicant is overmatched when litigating pro se against the trained counsel representing the United States. The immigration courts do not have the authority to designate pro bono counsel for noncitizen respondents in their administrative proceedings. The consequence is that the asylum seeking community is highly dependent on a private bar that varies in skill level, familiarity with the asylum process, and commitment to its clients. Immigration case law requires applicants to meet strict standards of proof in corroborating their claims. A central problem is whether counsel for these respondents has an equally high burden of effective advocacy or, at a minimum, a burden of informing the clients of their evidentiary obligations. This article will deal with the representation of clients in their claims of ineffective assistance of counsel and assess the role of the Board of Immigration Appeals and the U.S. courts of appeals in ensuring that immigrants are afforded a fair hearing in their removal proceedings. The Board of Immigration Appeals has a long-established, threepronged approach for raising a claim of ineffective assistance of counsel under Matter of Lozada, requiring the applicant to enter a sworn affidavit alleging counsel\u27s responsibilities and their failure to fulfill these obligations, inform the counsel of the charge and permit them to respond, and report any ethical or professional violation to the relevant state bar disciplinary panel. In order to win a new hearing, the immigrant must also show that the defective performance of counsel negatively influenced the outcome of the case.4 The Eleventh Circuit has favorably viewed this requirement of demonstrating prejudice. Thus, before the Eleventh Circuit, pursuant to Dakane v. U.S. Attorney General, the applicant must show that the performance of counsel was so inadequate that there is a reasonable possibility that, but for the attorney\u27s error, the outcome of the proceedings would be different.\u27 Dakane itself involves an attorney that failed to file a required brief and thus deprived a Somali asylum applicant of his right to appeal. The Eleventh Circuit rejected the petition for review because the immigration judge had found Dakane\u27s testimony not credible.6 The court reasoned that the attorney\u27s failure on appeal did not prejudice Dakane, as his own testimony was his undoing.7 The court did not address the fact that with adequate performance of counsel, Dakane might have contested and possibly reversed the negative credibility finding; and that he was therefore likely subject to prejudice by his counsel\u27s negligence. The court presently uses Dakane as the standard for reviewing cases alleging ineffective assistance of counsel. As of May 2008, Dakane has been cited almost 100 times by federal courts of appeals, with most of the citations coming from the Eleventh Circuit.8 The Eleventh Circuit has yet to find prejudice under the Dakane standard. Dakane was decided under the deferential abuse of discretion standard that federal courts apply in cases arising within an administrative agency\u27s area of expertise.9 However, the Board of Immigration Appeals and the Department of Justice (the agency that is being questioned regarding its expertise), in issuing decisions in cases arising in the Eleventh Circuit, rely on Dakane to reject cases for failing to demonstrate the requirement of prejudice. The facts of these cases are often further complicated by multiple layers of ineffective assistance and the failure of counsel to preserve issues for appeal or to properly follow established precedent or procedure. This article will examine the seemingly disastrous results of cases like Dakane in processing the cases of asylum seekers and other immigrants facing deportation. It will further explore bar complaints and Lozada claims before the Department of Justice. The goal is to reveal whether Dakane is itself problematic or if it is simply indicative of failures of advocates in representing asylum seekers and presenting other defensive cases in removal proceedings