deportation

Carachuri-Rosendo v. Holder

Issues

Whether a deportable alien is ineligible to challenge his removal proceedings because he could have been prosecuted for recidivist narcotics possession, an “aggravated felony” for the purposes of federal immigration law, even though the alien was not prosecuted for recidivist possession in state court?

 

Under the Immigration and Nationality Act, a deportable lawful permanent resident is ineligible to petition the Attorney General for cancellation of removal proceedings if he has a conviction for an “aggravated felony.” Congress defines “aggravated felony” as including any felony under the Controlled Substances Act. Under that Act, simple possession of most narcotics is a misdemeanor. However, possession of a controlled substance by an individual who has a prior conviction for possession is a felony. This case will resolve a circuit split in deciding whether a deportable alien who has been twice convicted in state court for non-felony simple possession is ineligible to seek cancellation of removal proceedings on the theory that the alien has been, for the purposes of federal immigration law, convicted of an “aggravated felony” because he could have been prosecuted for felony recidivist-possession under federal law.

Questions as Framed for the Court by the Parties

Under the Immigration and Nationality Act, a lawful permanent resident who has been "convicted" of an "aggravated felony" is ineligible to seek cancellation of removal. 8 U.S.C. § 1229b(a)(3). The courts of appeals have divided 4-2 on the following question presented by this case:

Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been "convicted" of an "aggravated felony" on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

Petitioner Jose Angel Carachuri-Rosendo (“Carachuri-Rosendo”) came to the United States in 1993 and thereafter became a lawful permanent resident. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 264 (5th Cir.

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Chaidez v. United States

Issues

Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla? 

 

In 2003, Roselva Chaidez pleaded guilty to an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), but her lawyer failed to inform her that her plea made her eligible for deportation. Subsequently, the Supreme Court held in Padilla v. Kentucky that the right to effective assistance of counsel includes a duty to inform defendants of deportation consequences of a plea deal if the consequences are clear. Nevertheless, the Seventh Circuit Court of Appeals held that Padilla did not apply retroactively to Chaidez’s conviction. Chaidez argues that the Supreme Court should hold that Padilla was dictated by precedent (and therefore not a new rule) and is retroactively applicable to her case. The United States counters that Padilla was not dictated by precedent (and therefore was a new rule) and is not retroactively applicable to Chaidez’s conviction. Chaidez argues that Padilla should be retroactively applied because to hold otherwise would undermine the obligation of prosecutors to “seek justice,” which requires using their knowledge of immigration consequences when considering to alter convictions. In response, the United States counters that retroactively applying Padilla would allow defendants to avoid the consequences of their convictions based on a minor error by a lawyer. 

Questions as Framed for the Court by the Parties

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.

The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

Roselva Chaidez was born in Mexico and has been a lawful, permanent resident of the United States since 1977. See Chaidez v. United States, 655 F.3d 684, 686 (7th Cir.

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Flores-Figueroa v. United States

Issues

Whether the Government can convict a person for aggravated identity theft, which requires proof that he "knowingly transfer[red], possesse[d], or use[d] . . . a means of identification of another person[,]" even if he did not know that the identification he used for employment belonged to another person.

 

Ignacio Flores-Figueroa, a Mexican immigrant used a false name, social security number, and resident alien card to obtain employment. Unbeknownst to him, these documents belonged to another person. When the government discovered this, it charged him with aggravated identity theft under 18 U.S.C. § 1028A(1)(a), and he was found guilty. Flores-Figueroa contends that under the statute, he committed mere identity fraud rather than aggravated identity theft because he did not know that the identity information in fact belonged to a real person. The government argues that the statute should apply to all defendants who use another's identity information, regardless of their mens rea, or intent. The outcome of this case will impact how identity theft cases are prosecuted as well as the rights of immigrants who have used falsified identity documents.

 

    Questions as Framed for the Court by the Parties

    Whether, to prove aggravated identity theft under 18 U.S.C. § 1028A(a)(1), the Government must show that the defendant knew that the means of identification he used belonged to another person.

    Petitioner Ignacio Flores-Figueroa, an immigrant from Mexico, secured false identification documents in order to gain employment at L&M Steel Services. See Brief for Petitioner, Ignacio Flores-Figueroa at 2; Brief for Respondent, United States at 2. He used a false name, social security number and resident alien card. See 

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    Judulang v. Holder

    Issues

    Whether a lawful permanent resident who pled guilty to deportable offenses, but did not leave the country and return before the government started deportation proceedings, is barred from applying for discretionary relief  where  similarly situated permanent residents in exclusion proceedings could seek such relief.

     

    After Petitioner Joel Judulang, a lawful permanent resident of the United States, was convicted of a deportable offense, the Board of Immigration Appeals determined that he was not eligible for a discretionary waiver of deportability under Section 212(c) of the Immigration and Nationality Act. On its face, Section 212(c) applies only to lawful permanent residents who are excludable when they attempt to enter the country, rather than to residents convicted of deportable offenses while already in the country. However, the Board of Immigration Appeals has previously allowed some permanent residents convicted of deportable offenses to apply for the Section 212(c) discretionary waiver. Petitioner Judulang asserts that he should be allowed to take advantage of the waiver, since his deportable offenses would render him excludable if he tried to re-enter the country. Judulang further argues that the Board of Immigration Appeals' change in Section 212(c) policy regarding deportable and excludable offenses is impermissibly retroactive and facially unconstitutional. The Department of Justice argues that the Board of Immigration Appeals has good reason to require a close textual similarity between a charged ground of deportability and a waivable ground of excludability, and that its policy is not impermissibly retroactive because it does not reflect a change in previous law. The Supreme Court’s decision in this case will mean the difference between amnesty and deportation for many lawful permanent residents convicted of deportable offenses.

    Questions as Framed for the Court by the Parties

    Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under  form  Section 212(c) of the Immigration and Nationality Act.

    Petitioner Joel Judulang, born in the Philippines in 1966, became a lawful permanent resident (“LPR”) of the United States at eight years of age. See Judulang v. Chertoff, 535 F. Supp. 2d 1129, 1130 (S.D. Cal.

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    Maslenjak v. United States

    Issues

    Can a naturalized American citizen have her citizenship revoked for making an immaterial false statement in her naturalization application?

    Divna Maslenjak and her family immigrated to the United States as refugees in the aftermath of the Bosnian War, claiming they feared persecution because Maslenjak’s husband had avoided military conscription during the war. Maslenjak became a United States citizen in 2009, indicating on her application that she had never lied to immigration officials. United States officials, however, discovered that Maslenjak’s husband served as an officer in the Serbian Bratunac Brigade at the time the unit committed war crimes in the Bosnian War. Maslenjak was convicted under 18 U.S.C. § 1425(a) with “knowingly procuring” her citizenship “contrary to law” due to her misrepresentations of her husband’s military service on her family’s refugee application. Maslenjak argues that materiality is a required element of § 1425(a), and therefore the government must prove that the false statement influenced the decision to approve the citizenship application. The United States argues that § 1425(a) only requires knowledge of the underlying offense, here making a false statement to a government official, and does not require proof of materiality. The Supreme Court’s decision will determine the circumstances under which naturalized citizens can be denaturalized and the government’s burden of proof in denaturalization proceedings.

    Questions as Framed for the Court by the Parties

    Whether the Sixth Circuit erred by holding that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

    In the 1990s Divna Maslenjak and her family lived in the former Yugoslavia, in what is today Bosnia and Herzegovina. See United States v. Maslenjak, 821 F.3d 675, 680 (6th Cir. 2016). Maslenjak and her family, who are ethnic Serbs, were displaced from their home during the Bosnian War.

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    Mellouli v. Holder

    Issues

    The Supreme Court will determine when a state drug-paraphernalia conviction sufficiently “relates to” a substance listed under the Controlled Substances Act to justify removing a permanent U.S. resident under the Immigration and Nationality Act. Moones Mellouli argues that, even though Adderall is a federally-controlled substance, his deportation was impermissible because his state conviction record did not identify the substance found in his drug paraphernalia and thus did not relate to a federally-controlled substance. United States Attorney General Holder contrastingly argues that deportation is permissible under the Immigration and Nationality Act because a state drug-paraphernalia conviction itself sufficiently relates to a federally controlled substance. The Supreme Court’s decision will impact immigration and safety in the United States. 

    Questions as Framed for the Court by the Parties

    To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), must the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?

    The United States Attorney General, Eric Holder, is responsible for adding substances to and maintaining the Federal Controlled Substance Schedule. See Brief for Respondent, Eric Holder, at 2–3. Holder and the Department of Justice are also responsible for federal regulation of controlled substances in the United States. See id.

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    Negusie v. Mukasey

    Issues

    Whether the bar against granting asylum in the United States to refugees who have participated in acts of persecution should automatically apply to those who have been forced into participation under threat of torture or death.

     

    Daniel Negusie was forcibly conscripted into the Eritrean military but refused to fight. After two years’ imprisonment at an Eritrean military camp, he spent four years serving as a guard at the camp, without freedom to leave. His duties included keeping prisoners in the sun and denying them showers and fresh air, but he was verbally reprimanded for sometimes refusing to do so. Eventually, Negusie escaped to the U.S., where an immigration judge denied his application for protection from deportation. The judge held that, under the “persecutor bar” of the Immigration and Nationality Act (“INA”), Negusie’s role in the persecution of others made him ineligible for refugee status, notwithstanding his service as a guard and his probable torture if returned to Eritrea. The Board of Immigration Appeals (“BIA”) and the Fifth Circuit affirmed. On certiorari, Negusie argues that the INA’s persecutor bar is not meant to apply to individuals who involuntarily took part in the persecution of others. Attorney General Mukasey responds that the bar contains no voluntariness requirement, and that the Court should defer to the BIA’s interpretation of the INA. The Court’s decision could affect the international community’s approach to human rights; it will clarify whether the U.S. Attorney General has discretion to consider an individual’s degree of moral culpability before granting or denying him refuge, or deciding to deport him to a country where he faces danger, which is considered a violation of core human rights principles.

    Questions as Framed for the Court by the Parties

    The Immigration and Nationality Act (“INA”) prohibits the Secretary of Homeland Security and the Attorney General from granting asylum to, or withholding removal of, a refugee who has “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 208(b)(2)(A), 8 U.S.C. § 1158(b)(2)(A). The question presented is:

    Whether this “persecutor exception” prohibits granting asylum to, and withholding of removal of, a refugee who is compelled against his will by credible threats of death or torture to assist or participate in acts of persecution.

    Eritrea, which lies between Ethiopia and the Red Sea in northeastern Africa, gained independence from Ethiopia in 1993 after thirty years of war. See History of Eritrea and Ethiopia. Five

    Acknowledgments

    The authors would like to thank Professor Jens Ohlin from Cornell Law School for his insights into this case.

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    Nken v. Mukasey

    Issues

    When a court reviews a petition for a stay of an alien's removal, should it use the standard found in 8 U.S.C. § 1252(f)(2), or the traditional four-factor test courts use for general preliminary injunctive relief?

     

    When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996, it did so partly with the intention of making it more difficult for aliens to remain in United States when an agency had deemed they must be removed; the IIRIRA thus contained stricter standards for judicial courts to follow when overruling an agency and allowing such aliens to remain in the country. At issue is how far Congress went in creating stricter standards, and which traditional standards it maintained. Petitioner Jean Marc Nken, an alien who applied for asylum in the U.S., was ordered to leave the country, and filed a motion for a stay of removal pending appeal of his case. The Fourth Circuit, instead of applying a traditional, four-factored test to determine whether to grant the stay, applied Section 1252(f)(2) of IIRIRA, which bars judges from enjoining the removal of aliens unless the alien can clearly show that the removal is prohibited by law. Petitioner appealed, contending that Section 1252(f)(2) was not intended to apply to motions for stays, and instead was only meant to apply to motions for injunctions. How the Supreme Court rules will determine the proper way to interpret IIRIRA, determine how much power judicial courts have over federal agencies once they have made decisions in aliens' cases, and impact both national security concerns  and petitioners fighting the decision to deport them.

    Questions as Framed for the Court by the Parties

    In addition, the application for stay is treated as a petition for a writ of certiorari, and the petition for a writ of certiorari is granted limited to the following question: "Whether the decision of a court of appeals to stay an alien's removal pending consideration of the alien's petition for review is governed by the standard set forth in section 242(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(f)(2), or instead by the traditional test for stays and preliminary injunctive relief."

    In April 2001, Jean Marc Nken, a citizen of Cameroon, entered the United States on a transient visa, and remained in the U.S.

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    Padilla v. Kentucky

    Issues

    1. Is a defense attorney required to research and advise a defendant about the possible immigration consequences that may result from entering a guilty plea?
    2. If a defense attorney affirmatively misadvises the defendant of the possible immigration consequences of entering a guilty plea, can the defendant later claim he received ineffective assistance of counsel?

     

    In 2002, Jose Padilla (“Padilla”; not the terrorism detainee), a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel’s advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claims that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contends that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The outcome of this case will affect the duty a defense counsel has to a non-citizen client when advising a client regarding a guilty plea and the rights of a non-citizen to claim ineffective assistance of counsel when not advised or misadvised of immigration consequences.

    Questions as Framed for the Court by the Parties

    1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
    2. Assuming immigration consequences are "collateral,” whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

    Petitioner, Jose Padilla (“Padilla”), is a native of Honduras and a Legal Permanent Resident of the United States. See Padilla v.

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    Additional Resources

    ·      Annotated U.S. Constitution: Sixth Amendment: Right to Counsel

    ·      Wex: Law about Immigration Law

    ·      FindLaw: Deportation

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