Immigration prosecutions made up the biggest segment of criminal prosecutions lodged by U.S. Attorneys in fiscal 2012, the agency reported. U.S. Attorneys’ Office, United States Attorneys’ Annual Statistical Report: Fiscal Year 2012. This is consistent with a trend that stretches to the end of the Bush Administration. According to the agency’s report, immigration prosecutions accounted for 40.6% of all federal criminal cases filed in fiscal year 2012. 2012 Statistical Report at 10 chart 2.2. This is a slight drop from the 41.8% of the federal criminal docket that immigration crimes filled in [...]
The Mentally Ill Immigrant & Due Process
Patty Corrales On April 23, 2013, a federal district judge ordered in the case of Franco-Gonzalez v. Holder, a class action lawsuit, the U.S. Immigration and Customs Enforcement, the Attorney General, and the Executive Office of Immigration Review to provide legal representation to immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings. Franco-Gonzalez v. Holder, No. CV 10-02211 DMG, slip op. (C.D. Cal. April 23, 2013) (Gee, J.). The ruling is the first of its kind for immigrant detainees who are [...]
US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives
In a decision about a politically contentious lawsuit, a federal district court struck a blow at the Department of Homeland Security’s use of prosecutorial discretion to manage its removal work. Crane v. Napolitano, No. 3:12-cv-03247-O, slip op. (N.D. Tex. April 23, 2013) (O’Connor, J.). The court strongly suggested that it will uphold the bulk of the claims brought against DHS by the ICE union challenging ICE’s prosecutorial discretion memoranda and the specific prosecutorial discretion initiative known as Deferred Action Against Childhood Arrivals (DACA). As I detailed before, the agents [...]
US Dist Ct: ICE agents have standing to pursue challenge to prosecutorial discretion policy
A U.S. District Court announced that several ICE agents challenging the Obama Administration’s prosecutorial discretion and deferred action policy initiatives may take their claims to trial. Crane v. Napolitano, No. 3:12-cv-03247-O, slip op. (N. Dist. Tex. Jan. 24, 2012) (O’Connor, J.). The court concluded that the agents have standing to pursue their claim that they may suffer adverse employment consequences as a result of doing what the INA, the federal statute that governs immigration law, requires of them. The ICE agents’ single surviving claim is that Secretary Napolitano’s deferred [...]
Scholars Sidebar: Can immigration attorney be appointed in fed criminal case?
A new article by a Justice Department trial attorney suggests that it may be possible for immigration counsel to be appointed in the federal prosecution of a noncitizen defendant. Scott R. Grubman, I Want My (Immigration) Lawyer! The Necessity of Court-Appointed Immigration Counsel in Criminal Prosecutions After Padilla v. Kentucky, 12 Nev. L. J. 364 (2012). Grubman clearly explains that the views expressed in the article are his alone and not those of the Justice Department. According to Grubman, the federal Criminal Justice Act may provide a route for a criminal defense attorney to [...]
US Dist Ct: OR statutory rape not sexual abuse of minor aggravated felony
A federal district court in Oregon recently determined that Oregon’s rape in the third degree offense, which the court referred to as “statutory rape,” does not meet the requirements the sexual abuse of a minor type of aggravated felony. United States v. Vidal-Mendoza, No. 10-393-MA, 2011 WL 1560987, 2011 U.S. Dist. LEXIS 44333 (D.Or. Apr. 25, 2011) (Marsh, J.). This case involved an individual who was convicted of rape in the third degree, Or. Rev. Statute § 163.355, “involv[ing] consensual contact between defendant, who was 21 or 22 years old at the time, and his then girlfriend (who was [...]
Fed dist ct: Vacates 1998 conviction based on Padilla
An Ohio federal district court judge granted a motion to vacate a 1998 conviction based on the plea attorney’s incorrect advice regarding deportation. United States v. Reid, No. 1:97-CR-94, slip op. (S.D. Ohio Aug. 4, 2011) (Spiegel, J.). In his opinion and order, Judge Arthur Spiegel retroactively applied Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court decision recognizing a duty under the Sixth Amendment right to counsel to advise criminal defendants of the deportation consequences of conviction. Reid's post-conviction attorney, Neil I. Fleischer of The Fleischer Law Firm LLC [...]
US dist ct: Mandatory detention applies only if detained upon release from crim custody
The U.S. District Court for the Eastern District of Virginia recently kept up its practice of holding that the INA’s mandatory detention provision, INA § 236(c), applies only to individuals who ICE detains upon release from criminal custody. Hosh v. Lucero, No. 1:11-cv-464, 2011 WL 1871222 (E.D. Va. May 16, 2011) (Trenga, J.). The individual involved here, Hosh, is an LPR charged as removable for having been convicted of an aggravated felony and thus subject to mandatory detention pursuant to INA § 236(c)(1)(B). ICE did not arrest Hosh until sometime after he had successfully completed his [...]