Andrea Sáenz Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote [...]
BIA: Leveling the playing field for § 212(c) relief
By Tamikka Pate After much belaboring over who is entitled to relief from removal under long-repealed section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed by Illegal Immigration and Immigrant Responsibility Act of 1996, H.R. 3610, 104th Cong. § 304(b) (1996)), the BIA has finally reached a decision. In Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), the BIA adopted an approach that places inadmissible and deportable LPRs on a truly level playing field, while disregarding mechanical distinctions that arise from statutory structure and bear no relation to [...]
3 Cir: Barred from 212(c) relief by conviction that didn’t exist when application filed
The U.S. Court of Appeals for the Third Circuit held that a noncitizen was not eligible for relief under former INA § 212(c) because a conviction that occurred 13 years after submitting his application pushed him beyond the permissible time of imprisonment. Lupera-Espinoza v. Attorney General, No. 12-2007, slip op. (3d Cir. May 28, 2013) (Hardiman, Aldisert, and Stark, JJ.). Judge Hardiman wrote the panel’s opinion. This case involved an LPR who was convicted of selling cocaine in 1993. A year later he was placed in deportation proceedings during which he sought § 212(c) relief. At that [...]
Tx Ct Crim App: Right to counsel properly waived despite not being told about deportation possibility
The Court of Criminal Appeals of Texas, the state’s highest criminal court, held that a person who waived his right to an attorney in a misdemeanor drug possession prosecution did not do so impermissibly despite not having been told that he might be deportable upon conviction. State v. Guerrero, No. PD-1258-12, slip op. (Tex. Crim. App. June 5, 2013) (Cochran, Keller, Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ.). Judge Cochran wrote the court’s opinion. This case presents like the picture of interior immigration enforcement in the age of crImmigration law. The defendant entered [...]
The state of play for § 212(c) relief
By Stephen W. Manning Seventeen years ago, Congress repealed INA § 212(c). Seventeen years is a long time. Seventeen years is enough time to raise a child, to travel beyond the solar system’s heliosphere, and, depending on where in the United States one lives, to watch the hatching of a new swarm of periodical cicadas. One might have the notion that four presidential election cycles would be enough time to bring to final adjudication the legal issues surrounding § 212(c) and finally allow the many long-time immigrants who could benefit from § 212(c) to move on with their lives. This post [...]
5 Cir: 212(c) relief available after jury trial if able to show “likelihood of reliance” on its existence rather than actual reliance
The U.S. Court of Appeals for the Fifth Circuit held that § 212(c) relief remains available to individuals convicted through a jury trial prior to the enactment of IIRIRA in 1996 if they are able to show a “likelihood of reliance” on the now repealed law. Carranza v. Holder, No. 11-60396, slip op. (5th Cir. Nov. 6, 2012) (Davis, Smith, and Dennis, JJ.). Judge Dennis wrote the panel’s decision. This case involved an LPR convicted after a jury trial in 1993, three years before Congress repealed § 212(c) relief through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [...]
Scholars Sidebar: SCOTUS holds § 212(c) comparable grounds requirement is arbitrary and capricious
In December the U.S. Supreme Court struck down the comparable grounds rule that had long been used to determine whether an individual facing deportation could seek relief under former INA § 212(c). Judulang v. Holder, No. 10-694, slip op. (U.S. Dec. 12, 2011). I wrote an article for LexisNexis analyzing the Supreme Court’s decision and its relevance for immigration practitioners. U.S. Supreme Court Holds BIA’s Comparable-Grounds Requirement for § 212(c) Relief is Arbitrary and Capricious, 2011 Emerging Issues 6164 (2011). The terms of my agreement with Lexis don’t allow me to make it available [...]
Md Ct App: Padilla is retroactive; vacates conviction
In an impressively well-reasoned decision, the Maryland Court of Appeals, the state’s highest court, held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to convictions entered after April 1, 1997. Denisyuk v. State, No. 45, slip op. (Md. Oct. 25, 2011) (Bell, Harrell, Barbera, Greene, JJ.). Justice Barbera wrote the majority’s opinion. Justice Battaglia wrote a dissenting opinion joined by Justice Murphy. Justice Adkins wrote separately in dissent. This case involved a noncitizen who pleaded guilty to second degree assault on November 2, 2006. Denisyuk, No. 45, slip [...]