We’re still only a few hours out from the release of today’s Supreme Court decision in Padilla v. Kentucky–-the facts and issues of which I’ve previously summarized here—and there’s no way I’m going to get through any kind of analysis of this thing without resorting to rank superlatives. So if you’ll indulge me, let’s run ‘em down right up front:

(1) Padilla is the single most significant stand that the Court has taken on behalf of the rights of non-citizens in my lifetime. It will provide a massive, widespread, immediate benefit for innumerable deserving¹ people, including many of my clients.

(2) Padilla has created the single most burdensome obligation that the Court has ever imposed upon the criminal defense bar.

(3) I have never had such thoroughly mixed reservations about a case that I should otherwise love so much.

Okay, deep breaths. Let’s break this down:

(1) What does Padilla mean for non-citizens?

As of today, any non-citizen present in the United States who enters a guilty plea to a criminal offense which will carry a “truly clear” consequence of future deportation (and, arguably, other immigration consequences) who is represented by counsel must be advised by their attorney of this consequence. In cases in which the immigration outcome is less certain (as it is in many, if not most criminal cases), counsel is obligated to advise that the plea may carry a risk of deportation. Non-citizens who have not been properly advised of these risks and/or consequence may be eligible to withdraw their pleas based upon ineffective assistance of counsel.²

(2) What does Padilla mean for criminal defense attorneys?

In a perfect world, the Supreme Court would have mailed courtesy copies of this decision to every criminal defense attorney in the United States firmly affixed to a very large bottle of J+B. Once the full implications of this ruling really start to sink in, most of them will be needing a stiff pour.

Simply put: Padilla requires the defense bar to learn a lot about federal immigration law, and very quickly. Imagine a baker who specializes in artisan breads arriving in the kitchen one morning to find that his boss has amended his job description to include the creation, production, and presentation of French pastries—with no concomitant training opportunities or salary increase. It’s kind of like that.

As of today, criminal defense attorneys throughout the United States are now required—upon pain of Constitutional ineffectiveness—to be conversant in all 33 definitions of the term “aggravated felony” outlined in the Immigration and Nationality Act as well as specific federal interpretations of each of these definitions and applications of these definitions to their local jurisdiction’s criminal statutes [PDF]. They will be expected to know exactly what does and does not constitute a “conviction”—a term which, under federal immigration law, is defined far more broadly than its equivalent in many states, including Massachusetts—and to have a working knowledge of how a client’s past criminal record may combine with the plea in question to raise a serious risk of deportation. They will be expected to have a working knowledge of “crimes of moral turpitude,” and to be able to articulate the legal and semantic differences between inadmissible and deportable offenses. They should probably learn a bit about mandatory detention [PDF] and the mechanics of immigration removal proceedings. This is, needless to say, a lot to learn at once, and replete with moving parts.

If you’ll allow me one more analogy: Padilla has drafted criminal attorneys to serve in the ranks of the armies of Immigrationland. It may not be what most of them signed up for, but they now have their marching orders and it seems that “theirs is not to make reply / theirs is not to question why.”

(3) What else is going on here?

Plenty. I’ll have more to say about this shortly, but here are a few immediate thoughts:

Padilla is kind of an interesting counterpoint to last year’s monumental Sixth Amendment ruling in Melendez-Diaz v. Massachusetts, in which the Court held that the government must introduce live supporting testimony from the chemist responsible for the analysis of a controlled substance before evidence of that substance may be used against a criminal defendant. Where Melendez-Diaz has caused massive systemic migraines for prosecutors and law enforcement, Padilla will now impose what I have to assume will be a comparable burden of time and resources upon the defense bar. In both cases, of course, the Court has been suspiciously quick to claim that these two sweeping, transformative decisions really won’t “commence [a] parade of horribles” (Melendez-Diaz) or “open the floodgates” (Padilla).

This is also the first time of which I’m aware that the Supreme Court has gone as far as to require defense counsel to be aware of a “collateral consequence” of a guilty plea. For as much as I hate slippery-slope arguments, there is a serious question here as to potential future challenges. What if a defendant isn’t informed that his conviction will leave him ineligible to receive federal student loan assistance? To serve in the U.S. military? To obtain a real estate license, or sit for a state bar exam? Do we need to provide each defendant with a checklist for these and every other possible potential future foreseeable consequence?

For as much as I wholeheartedly agree with Justice Stevens’s contention that the possibility of a lifetime of exile from the United States is perhaps the most serious collateral consequence imaginable, the fact remains that it is still a federal issue which is entirely separate from state-based criminal systems. Just a thought.

Again, though, these are all initial impressions within hours of first reading this decision. I’ll likely have more to say—including Massachusetts-specific analysis—once I’ve digested this thing a bit more, but my overall response (as an immigration practitioner, as least) is a feeling that justice has been done here. Despite my quibbling above, I fully agree with Justice Stevens:

Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

1. And, arguably, not-so-deserving… [↩]
2. Far more will likely be limned from this 18-page opinion in the coming years, but I think that this is a pretty fair summary of the basic holding. [↩]

Immigration Appeals, U.S. Supreme Court

This post was current as of June 11, 2009. To see how the AAO has worked under new leadership to specifically address the concerns expressed below, see this update.

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute… [↩]
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $475 more than the filing fee for an appeal to the Board of Immigration Appeals [PDF], $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF]. [↩]
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy. [↩]

Immigration Appeals, stupid laws

One quick followup to  last month’s jeremiad on outgoing Attorney General Michael Mukasey’s last-minute decision to single-handedly invalidate any Constitutional basis for counsel in immigration removal proceedings in the awkwardly-titled decision that we’re all just calling Compean:

At the time that I wrote that, George W. Bush was still (technically, but not that anyone really noticed) President of the United States. Now that the Change-o-Meter has been set a-whirrin’, however, it looks like there is a real chance that Compean may be hitting the shredder shortly.

AILA has recently published incoming Attorney General Eric Holder’s responses to a number of written questions from Senator Orrin Hatch submitted in advance of his confirmation last week. When asked directly for his thoughts on Compean, Holder responded:

The Constitution guarantees due process of law to those who are the subjects of deportation proceeding. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General.

Immigration Appeals Attorney General, immigration

An obituary:

Matter of Lozada (April 3, 1988-January 7, 2009) was good law for 20 years, and became a working part of the immigration litigator’s lexicon during that time. Rarely used but often useful, Lozada ensured basic Constitutional due process protections to aliens in removal proceedings, and was often the only hope for immigrants who had been ill-served by attorneys they had retained (often at exorbitant rates) and trusted to guide them through the eldritch realms of Immigrationland. It was not perfect, but it was workable. It worked.

Lozada suffered an untimely death on Wednesday when outgoing U.S. Attorney General Michael Mukasey surprised it from behind, garotted it, injected it with a shot of Bush-era executive hubris, reanimated it, and imbued the resultant chimera with an unholy taste for human flesh. I give you: Compean-Bangaly-J-E-C, 24 I&N Dec. 710 (A.G. January 7, 2009).

Mass Appeal has obtained a fresh copy of Mukasey’s monster, and will now (with Mssrs. Justerini & Brooks assisting) perform an initial autopsy: here for more

Immigration Appeals immigration

The right to seek asylum from persecution is one of medieval law’s greatest contributions to modern international jurisprudence. Asylum is a good and necessary provision—one of those basic legal principles that can be traced back to the Greeks and Romans—and one of the essential benchmarks of a civilized, compassionate society.

The First Circuit releases an average of maybe about 2-3 immigration-related decisions per week, the majority of which relate to asylum proceedings. The merits of these asylum appeals vary pretty widely, but often trend toward the weaker end of the spectrum. After a quick read through the facts, you can acknowledge that there was probably a pretty good reason for the initial denial by the immigration judge (”IJ”), despite any meritorious appellate issues that may have been raised in the process.

But every few months, there’s an asylum appeal that can get you thinking a little more about the state of our system. About the kind of country we want to be, and how our immigration policies could better reflect that. Read more…

1st Circuit, Immigration Appeals

As much as I love this paragraph as it is, it’s even more fun if you read it out in the stentorian brogue of Dr. Henry Jones:

“It is not the business of the courts to tell Congress what to do about public policy choices, but we are entitled to warn when the machinery that we help administer is breaking down.   The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct.   The regime is badly in need of an overhaul.”

Kim v. Gonzales, 468 F.3d 58 (1st. Cir. 2006)(emphasis added).

The First Circuit’s evident disenchantment with immigration appeals (may I offer you the paltry near-beer of a fresh half-pint of Justice Lite?) is understandable, especially given the explosion of BIA appeals they’ve had to endure since the passage of the 2002 reforms ostensibly designed to “streamline” the immigration appellate process. (I’m not up for putting together recent numbers tonight, but try here for a comprehensive look at the growing phenomenon as it stood a couple of years ago.) So this we-can’t-tell-you-to-do-something-about-this-but-please-seriously-guys-just-DO-SOMETHING kinda sentiment had to come out sometime.

To be fair, there’s no doubt what it was about this argument that had the First reaching for their revolvers:

“Kim’s first claim–that no crime of violence occurred even though Kim approached the victim with a cocked gun and shot him in the head as the victim fled–might seem frivolous to one not acquainted with immigration law…” (emphasis added)

Couldn’t have snarked it better myself. That last phrase tells you pretty much everything you need to know about what the First Circuit thinks about the current state of the Immigration and Nationality Act, the Executive Office of Immigration Review, the Board of Immigration Appeals, and the immigration bar at large.

But, more importantly, you read that argument correctly: The petitioner claimed that manslaughter should not constitute a “crime of violence” that should be classified as an “aggravated felony” for immigration purposes.

Again: Shooting a man in the back of the head did not constitute a felony in which there was a “substantial risk that physical force may be used… in the course of its commission.”

One more once? Intentional gun violence does not equal a “crime of violence.” Try saying it out loud out a few more times. Pace around the room a little, if that helps. I’ll be here.

Thing is, I have no doubt that counsel stood up and argued this with a straight face and a clean conscience. As the First has to acknowledge, it’s a good argument.

If you think this is all some kind of stupid joke, let me assure you that it is not—and to be the first to welcome you to Immigrationland! Double Scotch?

Of course, we can all agree right here that it’s a crazy argument, or at least that it sounds like one.

See, now, if you came up to me on the street and asked “Hey, would you say that manslaughter is a crime of violence?” my reasoned response would likely be a grunted affirmative just before I politely requested that you step away from my car with that squeegee–because, really, sorry man, but I’m really just all out of change–and rolled up the window and locked all my doors.

Yes, it sounds crazy that anyone would even try to litigate this issue. Squeegee crazy. But the truly insane takeaway is that this is a perfectly acceptable argument that actually passes the laugh test–thanks to some eminently-fixable vagaries of  both the relevant Rhode Island statute and the controlling federal law which defines “crimes of violence”–and that it may very well work next time around if it is properly raised earlier in the proceedings.

(Full disclosure: I recently asked the First Circuit if they might maybe like to consider an appeal which raised a similar question which kind of sounds about 75% as ridiculous as this one when you say it out loud, but I still stand by my argument in that one and will be happy to discuss its merits further with anyone who really wants to know. Plus, it’s not like we were talking about, y’know, manslaughter.)

1st Circuit, Immigration Appeals 1st Circuit, appeals, immigration