Taking an expansive approach to client representation, attorney Carlos M. García recently vacated a conviction that had served as the basis for removal, then headed to immigration court where he successfully moved to terminate removal proceedings. García, an attorney at García & García Attorneys at Law (this blog’s patrocinador and my brother), relied on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in the Texas district court, then fended off DHS’s attempt to remove his client on the basis of the “reason to believe” the client was a drug trafficker ground of removal.
The state district court proceeding (called a writ of habeas corpus in Texas) concerned an LPR who was convicted in 2009, almost a year before the Supreme Court issued Padilla, of Texas possession of marijuana in an amount less than 2,000 pounds but more than 50 pounds. Ex Parte —-, slip op. at ¶ 1 (Tex. Dist. Ct. Apr. 11, 2012) (Delgado, J.). The court had no difficulty applying Padilla retroactively because several Texas appellate courts have done so. Ex Parte —-, slip op. at ¶ 19.
The client was not put into removal proceedings until he left the USA and sought to return. At that time, DHS charged him as inadmissible for having been convicted of a controlled substances offense, INA § 212(a)(2)(A)(i)(II). Ex Parte —-, slip op. at ¶ 7-8.
With García’s help, the client sought to vacate the conviction on the ground that he was denied his right to effective assistance of counsel because his trial counsel did not inform him that he would be inadmissible. Ex Parte —-, slip op. at ¶ 10. He also argued that he would have contested guilt and gone to trial had he been advised of the immigration consequences of conviction. Ex Parte —-, slip op. at ¶ 11.
Importantly, García was able to secure trial counsel’s cooperation in the post-conviction proceeding. The trial defense attorney “acknowledges that he did not inform [the noncitizen defendant] of the immigration consequences of this criminal conviction” and added that he “conclude[d] that [the noncitizen defendant] would not have gone to trial if he had been informed of the immigration consequences.” Ex Parte —-, slip op. at ¶ 10-11.
Quoting Padilla’s language about the consequences of the INA’s controlled substances ground of deportation, INA § 237(a)(2)(B)(i), the court concluded that trial counsel’s representation fell below an objective standard of reasonableness when he failed to warn the client that a conviction would clearly result in his inadmissibility. Ex Parte —-, slip op. at ¶ 11-14. Further, García successfully argued that the client was prejudiced by this deficient representation. Ex Parte —-, slip op. at ¶ 14. Accordingly, the court vacated the possession conviction.
The focus then shifted to immigration court. Previously, the IJ had found the respondent removable under the controlled substances offense ground of inadmissibility, INA § 212(a)(2)(A)(i)(II), and denied cancellation of removal as a discretionary matter largely on the basis of his arrest record. Matter of —-, slip op. at 2, 6 n.2 (IJ Powell, June 13, 2012). The criminal court’s decision to vacate came while the removal case was on appeal to the BIA. After receiving the state court’s order vacating the conviction, the BIA remanded to the IJ to consider the effect of the vacated conviction. At that point DHS amended the Notice to Appear to add an additional basis of removal: reason to believe that the client is an illicit trafficker of controlled substances, INA § 212(a)(2)(C). Matter of —-, slip op. at 2.
To determine whether the client was removable under the reason to believe ground of inadmissibility, the IJ considered whether DHS met its burden of proof to show that, in fact, there was reason to believe that he was a drug trafficker. “The question,” the IJ explained, “is whether the DHS has shown by clear and convincing evidence that there is a reason to believe Respondent is or has been a trafficker in a controlled substance.” Matter of —-, slip op. at 4.
Importantly, the respondent never admitted to having been involved in drug-related activities, even those which led to his possession conviction. Rather, he claimed to have pleaded guilty “because he was living in Colorado at the time and it was extremely difficult for him to travel to South Texas for hearings.” Matter of —-, slip op. at 5.
Despite DHS’s multipronged efforts, the IJ was not convinced that the government met its burden. DHS pointed to drug-related convictions of several of the respondent’s family members during which the respondent was present and at least one instance in which the respondent was prosecuted for a drug-related crime. None of these instances, the IJ noted, resulted in a conviction. Indeed, some didn’t even result in a prosecution of the respondent. Only the possession of marijuana incident resulted in a conviction, but that was vacated through García’s efforts so it could not serve as the basis of removal. Matter of —-, slip op. at 5-6.
In the end, the IJ explained, “the Court is unable to conclude that the DHS has shown by clear and convincing evidence that there is a reason to believe that Respondent is a trafficker in a controlled substance.” Matter of —-, slip op. at 6. That’s not to say that he’s not a drug trafficker. “Indeed his arrest record strongly suggests this possibility,” the IJ explained in a footnote. Matter of —-, slip op. at 6 n.2. But the government failed to meet its burden of proof. As such, the IJ found that the respondent is not removable and terminated proceedings. Matter of —-, slip op. at 6.
If nothing else, the combination of these two victories shows that Padilla matters. Used strategically, it can result in a hard-fought victory…or two