Category Archives: Immigration

Judge Martin and the Eleventh Circuit

The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings.  One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right.  Another case,  United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case.  In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.

In each of these three cases, Judge Martin ended up on the side of the immigrant.  She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning.  As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising.  But one’s past experience is not always a reliable predictor of future action.  In fact, the two sometimes have no discernible correlation; Obama is a good example of that.

It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead  alienates them.  If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.

Akinsade: Strickland Prejudice Survives District Court Admonishment

A helpful reader has reminded me that fans of Padilla retroactivity may want to know about the recent decision issued by the Fourth Circuit Court of Appeals in Akinsade v. United States, No. 09-7554.  Akinsade involved a Nigerian immigrant who sought coram nobis relief based on the failure of his counsel to correctly advise him on the immigration consequences of a plea to embezzlement.  The lawyer advised Akinsade that he could not be deported based on a plea to this charge, when, in fact, he could have been.  No dispute that this was ineffective assistance.  The controversy, however, had to do with whether the district court cured the prejudice which flowed from the attorney’s misadvice during its plea colloquy with Akinsade.  The Fourth Circuit answered in the negative, and in doing so, granted Akinsade coram nobis relief.

There are a few things to note about the Akinsade decision.  First, in finding that the District Court did not “cure” the prejudice which arose from counsel’s misadvice, the Fourth Circuit was careful to emphasize the different constitutional rights underpinning a guilty plea proceeding and the effective assistance of counsel in a criminal matter.  As the Fourth Circuit put it:

Our decision today does not change the role of or impose any new obligations on the district court in Rule 11 proceedings. A district court’s duty to ensure a knowing and voluntary plea arises from the Fifth Amendment’s guarantee of due process and thus affords defendants a right distinct from the Sixth Amendment right to effective assistance of counsel. While we have recognized the inter-relationship between the two amendments in the context of guilty pleas, see United States v. Smith, 640 F.3d 580, 582 (4th Cir. 2011), we have never suggested that the sufficient protection of one right automatically corrects any constitutional deficiency of the other. Indeed, the Supreme Court has rejected a very similar argument. See Missouri v. Frye, 566 U.S. ___ (2012) (slip op., at 5) (explaining that the Court in Padilla, 130 S. Ct. 1473 (2010),rejected the state’s argument that a knowing and voluntary plea supersedes defense counsel’s affirmative misadvice on deportation consequences). As a result, we in no way suggest that in performing its role during the proceeding, a district court needs to be “clairvoyant” or must “guess” about whether a defendant has been misinformed regarding a particular consequence of a plea. When, as here, the claim raised is that of ineffective assistance of counsel, the overall focus must be on the prejudice arising from counsel‘s deficient performance. If a district court’s admonishment so happens to correct the deficient performance then there is no prejudice; however, if there is no correction, then our scrutiny is not directed toward the district court but appropriately to the constitutional offender.

Second, the Fourth Circuit expressly declined to rule on the issue of whether Padilla applied retroactively to the petitioner’s claim since the Government acknowledged that the misadvice provided by counsel was constitutionally deficient.  In essence, this is not so much a Padilla case as it is a Strickland case.  Which lends some support to the notion that Padilla did not create a new rule for retroactivity purposes.

Third, the finding of prejudice by the Fourth Circuit is significant in that the court looked beyond the so-called likelihood of success at trial to the defendant’s desire to contest the Government’s case because of the severity of the consequences which might befall him should he be convicted.  As the Fourth Circuit put it:

Akinsade still must show that the misadvice is a “but for” cause of his entering the guilty plea. Under the prejudice prong of Strickland, “[t]he potential strength of the state’s case must inform our analysis, inasmuch as a reasonable defendant would surely take it into account.” Ostrander v. Green, 46 F.3d 347, 356 (4th Cir. 1995)(citing Hill, 474 U.S. at 59-60overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc). Applying this standard, we have held that counsel’s affirmative misadvice on collateral consequences to a guilty plea was prejudicial where the prosecution’s evidence “proved to be more than enough” for a guilty verdict but was “hardly invincible on its face.” Ostrander, 46 F.3d at 356. We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation. United States v. Gajendragadkar, No. 97-7267, 1998 WL 352866, at *2 (4th Cir. June 3, 1998). In Gajendragadkar we reasoned that “[a]lthough a trial would present the risk of deportation, it would provide [the defendant] the opportunity to contest the Government’s evidence, or failing that, to challenge the Government’s estimate loss.” Id.

The decision can be downloaded here.

Slow And Steady Wins the Race

The Supreme Court will determine this Friday whether to grant certiorari in the Chaidez matter, the case in which the Seventh Circuit held that Padilla does not apply retroactively.  Presumably there is already a pool memo floating around the Court in which a clerk has made a recommendation as to whether cert. should be granted.  The Government has already made up its mind, however, having informed the Court that it agrees with the Petitioner (Chaidez) that cert. should be granted to resolve the Padilla retroactivity issue.

Aside from Chaidez, it will be interesting to see how many cert. petitions now pending before the Court will be “held” by the Court for “GVR” (grant, vacate and remand) treatment in light of its decision in Chaidez — assuming, of course, the Court does grant cert. on Friday.  It will also be interesting to see if Justice Kagan will have to recuse herself because, perhaps, she might have represented the Government back when the Padilla case was before the Court  (the Government filed an amicus brief in Padilla urging the Court to affirm the Supreme Court of Kentucky; yet another example of the current administration’s cramped and antagonistic view of immigrants’ rights ).  Should Justice Kagan have to recuse herself, there is a very real possibility that the Court may deadlock on the retroactivity issue, in which case the Seventh Circuit’s decision would be affirmed.  Not a good scenario for immigrants or their counsel.  The unlikely savior in such a situation may be the Chief Justice, however.  I say this only because the Chief Justice has indicated recently a discomfort with the Court’s rightward trajectory, not to mention the fact that he joined the majority in Vartelas, the Court’s recent decision which, in effect, limited the applicability of the draconian anti-immigrant legislation that is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.

For those who are interested in reading the cert. materials in Chaidez, they are available here via the SCOTUS blog website.

Padilla in 2012 Thus Far

I apologize for the lack of Padilla related posts since the New Year.  There simply wasn’t much to report, perhaps due to the holidays.  This has changed some of late, and courts have been issuing opinions discussing both Padilla retroactivity and Padilla ineffectiveness.  As to the former, however, district courts seem to realize that the question of whether Padilla applies retroactively is one that, sooner or later, will be decided by the Supreme Court.  And they have acted accordingly, either skirting the issue entirely or ruling on it but with little analysis.  As to the latter question of what constitutes ineffective assistance of counsel under Padilla, the fight has mostly been over when a postconviction litigant establishes that he or she has been prejudiced by counsel’s unconstitutional performance — that is, given that counsel was ineffective, would it have been rational for a defense to opt for trial had he or she been given the advice that Padilla required, i.e., that your conviction will result in adverse immigration consequences and this is why.  In this respect, courts have been been split as to whether the decision to go to trial should be based on one’s likelihood of success in prevailing at trial, i.e., lack of evidence of inculpatory evidence and the availability of viable defenses, or on one’s determination to “fight to the death” so he or she could avoid potential deportation that would certainly come with a criminal conviction. The Third Circuit adopted the latter test for Padilla prejudice in its landmark decision in Orocio.

Without further ado, I offer here, cites to a few recent decisions which consider the above issue with varying outcomes:

Pilla v. United States, No. 10-4178 (6th Cir. Feb. 6, 2012) (defendant failed to establish prejudice under Padilla because of “overwhelming evidence of her guilt”).

McNeill v. United States, No. A-11-CA-495 SS, (W.D. Tex.  Feb. 2, 2012) (finding Padilla retroactive but denying relief because counsel was not ineffective and even if he were petitioner failed to establish prejudice)

United States v. Fajardo, No. 10-CV-1978, (M.D. Fla. Jan. 26, 2012) (finding Padilla not retroactively applicable after detailed Teague v. Lane analysis)

Yau v. United States, 11 C 8462 (N.D. Ill. Jan. 26, 2012) (granting 2255 petitioner an evidentiary hearing on Padilla claim after finding a sufficient threshold showing of prejudice where it would have been “rational under the circumstances for [the petitioner] to reject the plea agreement and go to trial had he known of the immigration consequences“) (emphasis added).

The decision in the cases cited above should be available on Google Scholar.  If not, please feel free to email me and I will send you the decision.

 

 

Split Decisions

Just a quick note that the Third and Tenth Circuit Court of Appeals denied petitions for rehearing in their respective cases dealing with Padilla retroactivity. It is notable that the denial in the Third Circuit came at the expense of the Government, which lost on appeal in seeking to block retroactive application of Padilla.

The Seventh Circuit is still considering whether to rehear its Padilla retroactivity case (Chaidez) and has asked for a response from the Government on the appellant’s request for rehearing.

Not the Last Word

Just a heads up that the losing parties in the three federal appellate court cases that dealt with Padilla retroactivity — Chaidez (7th Cir. — Padilla no retroactive), Chang Hong (7th Cir. — same) and Orocio (3d Cir. — Padilla retroactive) — have all signaled that they will be seeking en banc rehearings.  Also of note is that lawyers from the National Immigrant Justice Center have entered appearances on behalf of defendant in the Chaidez matter.  That will surely be one to watch.

Over in sovereign state territory, the two cases dealing with Padilla retroactivity that are pending before the New Jersey Supreme Court (State v. Frensel Gaitan) and the Florida Supreme Court (State v. Gabriel Hernandez) are just that, still pending.  I will post updates as they become available.

 

Seventh and Tenth Circuits Rule on Padilla Retroactivity

I apologize again for the delay in posting.  Things have been hectic around here, both work-wise and life-wise.  For those of you who follow developments with Padilla retroactivity, this is probably old news.  But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively.  Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog.  (See posts here and here.)  The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition.  Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.

I will have more to say about both decisions soon.  Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.

Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity.  Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court?  If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?

Padilla Retroactivity in SCOTUS?

A few months ago, I wrote about the Virginia Supreme Court’s decision in Commonwealth v. Morris, limiting the procedural vehicles from which a defendant could launch a postconviction challenge under Padilla.  This decision generated some controversy after lower court judges refused to abide by the Morris court’s ruling and continued to entertain Padilla claims raised in the rather esoteric motions that were at issue in Morris.

Thanks to the SCOTUS blog, we have learned that Morris has appealed this decision to the U.S. Supreme Court.  The questions presented are as follows:

(1) Whether Padilla v. Kentucky applies retroactively to ineffective assistance of counsel claims raised on collateral review; and

(2) whether Virginia provides adequate postconviction remedies when petitioner and others similarly situated are precluded from vindicating violations of the right to effective assistance of counsel under Padilla.

Morris (the petitioner) is being represented by the law firm, Duane Morris.  The petition can be accessed here.  I will post Virginia’s response as it becomes available.

Additional Thoughts on Orocio

The Third Circuit Court of Appeals might be the first federal appellate court to rule on Padilla retroactivity but it certainly won’t be the last.  Indeed, as of this writing, the Government has sought a re-hearing, en banc, in Orocio, a request that will likely be granted, considering the import of the issues.  Here are some of my thoughts/observations on the case:

(1) The facts in Orocio were almost identical to those in Padilla (longtime lawful permanent resident; relatively minor drug charge) which apparently helped in persuading the Third Circuit to rule in Orocio’s favor.

(2) The postconviction vehicle of choice was a petition for a writ of error coram nobis; here, the defendant would have been out of time were he to file a 2255 habeas petition.  The court didn’t address any procedural issues related to this since the lower court had not done so.

(3) In deciding that Padilla announced an “old rule” and could therefore be applied retroactively, the Third Court looked simply to Strickland’s threshold standard of reasonableness, which, the Supreme Court has ruled, applies in the plea context.  According to the Third Circuit then “[f]ar from extending the Strickland rule into uncharted, Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.”  And just because the Strickland standard is successfully applied to a new factual circumstance does not necessarily mean that it creates a “new rule” for retroactivity purposes — this is especially the case when the claim involves a “rule of general applicability” which was the product of the Strickland case.

(4) The Third Circuit overruled prior precent in finding that the petitioner made out a prima facie case for Strickland prejudice.  Thus, defendant’s no longer have to show so-called factual innocence; instead,  a defendant need only show that it would have been rational for him to reject the plea and proceed to trial, which appears to be a less onerous standard.  Under the reasoning of the Orocio court, in cases where deportation is a potential consequence of one’s plea-based conviction, it is almost always rational for a defendant to reject a plea and proceed to trial.  But that’s just my reading of the decision.

I post here the Third Circuit’s official opinion in Orocio.  The Government’s brief is here, the Appellant’s, here.  The Appellant’s reply brief is here.

Federal Appellate Court Rules that Padilla Can Be Applied Retroactively

The Third Circuit Court of Appeals has held in United States v. Orocio that Padilla announced an “old rule” and can therefore be applied retroactively.  Although this was a 2-1 decision, the dissenting judge only took issue with the majority’s Strickland prejudice analysis.

In ruling that Padilla announced an “old rule” the Orocio court focused on Strickland’s bedrock standard of “reasonableness” under the circumstances.  It matters not then that Strickland would eventually be applied to potentially novel factual circumstances.  What matters is that the reviewing court looked to the reasonableness standard in determining whether there was a viable ineffective assistance of counsel claim.  This is precisely what the Supreme Court did in Padilla.

The decision can be downloaded here.