Blog Archive

Legal Issue: How does the Sixth Amendment’s guarantee for effective assistance of counsel affect a non-citizen where on advice of his criminal defense attorney he pleads guilty to a charge that will cause mandatory deportation in-spite of the attorney’s assurance that deportation was not a consequence.  Does this advice amount to ineffective assistance of counsel and allow the setting aside of the guilty plea?

(This case was heard by the Supreme Court in October of 2009 and should be decided in 2010).

Pertinent Law:

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Jose Padilla, a legal permanent resident, originally from Honduras has legally resided in the United States for forty years and served in the United States Army during Vietnam faces deportation after a plea bargain on drug charges. He was thoughtful enough to ask his counsel if his plea would effect his status and he was told  that he “did not have to worry about immigration status since he had been in the country so long.”  That statement could not be more wrong.

Mr. Padilla (no relationship to the al-Quida suspect) now faces permanent deportation from a country that has been the lawful home to him and his family for forty years.  He has petitioned to set aside his guilty plea and go to trial.  His case is now pending a decision by the U.S. Supreme Court.

Click here to read the law and rationale the Supreme Court will use to reach a decision

The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute,  it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder.  cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings.  The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.

Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia.  This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review.  This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.

Click here to read the law and rationale that the Supreme Court used to reach their decision.

Legal Issue: What is the scope of jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and does this statute remove jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?

Pertinent Law:

8 U.S.C.S. § 1252(a)(2)(B) states that no court shall have jurisdiction to review any action of the U.S. Attorney General the authority for which is specified under the subchapter of the statute to be in the discretion of the Attorney General.

A motion to reopen removal proceedings must state the new facts that will be proven at a hearing to be held if the motion is granted, and must be supported by affidavits or other evidentiary material. 8 U.S.C.S. § 1229a(c)(7)(B). The motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. § 1229a(c)(7)(C)(i). Among matters excepted from the 90-day limitation are motions to reopen asylum applications because of changed conditions in the country of nationality or removal.

When a statute is reasonably susceptible to divergent interpretation, a court adopts the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. The court applies that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, the court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption.

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On March 2, 2010, the Supreme Court decided in Johnson v. US, that a crime of simple battery is not a violent felony. Though this decision was based such a categorization for the purposes of sentance enhancement under the Armed Career Criminal Act (ACCA), this decision may provide precendent that can be applicable in many other areas of law.

The area of assault and battery has been a cause of headaches for attorneys, judges, and law students across the nation. Assault’s common law legal definition, contrary to the general use of the word, is, to put it simply, putting someone in fear of imminent harm. Battery, on the other hand, is the actual touching of the person. This touching, however, is simply qualified as “offensive touching.” Courts routinely note that a simple tapping of another can be grounds for a conviction for battery.

On the other hand, a crime of violence is generally defined as an offense where the use or the threat of use of physical force is an element. Being convicted of a crime of violence can have additional ramifications for the offender; for example, as in Mr. Johnson’s case, he was potentially subjected to a sentence enhancement for multiple violent convictions. In addition, conviction of for a crime of violence has ramifications for immigration purposes. An immigrant who has committed a crime of violence can be subjected to deportation, or prevented from asserted certain rights and defenses when applying for legal status.

Because of the amorphous definitions an act of touching, or threatening to touch someone can take under the categorizations of assault and battery, courts have struggled with whether such convictions should categorically qualify as a crime of violence.

The Supreme Court addressed the issue of simple battery in US v. Johnson, and held that is is not categorically a crime of violence, because such a conviction requires only an intent to touch, without the need to find injury to the victim: We think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force- that is, force capable of causing physical pain or injury to another person.”

Following the devastating earthquake on January 12, 2010, the Unites States issued a 18-month designation of Temporary Protected Status (TPS) for Haiti. This allows Haitians who were in the United States at the time of the earthquake to stay in the country legally and obtain work authorization while they are unable to return home. This applies to the 100,000-200,000 estimated Haitians who are currently in the United States. However, Haitians are not automatically granted this status, and must apply for TPS within 6 months of the January 12, 2010 designation, or else their application for TPS and work authorization will be denied. If they do not have any other means of obtaining legal status, they will be subject to removability. According to USCIS, as of February 12th, only 12,000 Haitians has applied for TPS.

It is estimated that over 500,000 Haitians are internally displaced, meaning that they were in Haiti at the time of the earthquake, but their homes have been destroyed or are inaccessible, and thus have no place to call home. Approximately 50,000 of these Haitians have been approved to reunite with family in the United States, but still much await a visa before they can actually enter the country.

Though there are legal ways for Haitians to enter the United States, because of the dire situation in their home country, many are fleeing for the Dominican Republic and the United States, regardless of whether they have received advance permission. The United States Coast Guard is left with the unfortunate task of stopping boats of people from Haiti, and then are left with the problem of where to take them. The United Nation High Commission for Refugees (UNHCR) has made an international appeal to governments to suspend all involuntary returns and grant interim protection to these desperate people, but many countries have been unwilling to announce an official policy to accept displaced Haitians.



In a unprecedented, and somewhat unexpected decision, an immigration judge in granted asylum to a family from jury, finding that “homeschoolers are a particular social group that the German government is trying to suppress… This family has a well-founded fear of persecution…. Therefore, they are eligible for asylum.”

Germany is one of the few countries in the world where it is illegal to home-school children. The rationale behind this law, as stated by government officials and court cases, is to ensure that children from different backgrounds are properly integrated.

The Romeikes are devout Christians, felt very strongly about educating their children is a different environment; specifically, they wanted to keep their children away from the rowdy classrooms of public schools, where teachers first priority was controlling the classroom, not teaching the students. They also questioned the material to be studied, saying there were too many glorified stories of troublesome children being treated as heroes, setting bad examples. However, the family wants to make it clear that they are not “fundamentalist religious nuts,” who only wish to teach their children the bible. They insist that they want their children to learn the truth about what is going on in the world. Their main concern is ensuring their children get the best education they possibly can, and they just don’t feel that the school system in Germany, neither public nor private, is a venue where that is possible.

In order to successfully obtain asylum status, the applicant(s) must argue that they are members of a distinct group who face persecution by the government because of a fundamental belief or trait they have, such as in this case, by being members in a particular group. The court found that indeed, the Romeikes faced persecution at the hands of the government based on their opposition to the government policy of not allowing home-schooling, and by being home-schooled, this qualifies them as members of a distinct group, a group that has never previously been recognized for asylum purposes. The element of persecution at the hands of the government was based on the severe penalties imposed by the government for those that were found to guilty of home-schooling, which could be as severe as fines up to $11,000, or even losing custody of their children.

So, now the family is free to live in the United States, and educate their children how they see fit, a constitutional right the Unites States Supreme Court has declared as fundamental.


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