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 [...]
Report: 49% of new fed prosecutions are immigration-related
Almost forty-nine percent of prosecutions filed in February 2011 in federal courts throughout the country were for immigration-related federal crimes, the Transactional Records Access Clearinhouse (TRAC) at Syracuse University reported. TRAC Reports, Prosecutions for February 2011 (May 17, 2011). Of the 13,092 cases initiated in February, 48.7% included immigration-related charges such as illegal reentry, 8 U.S.C. 1326, and unlawful entry, 8 U.S.C. 1325. This represents a 93.6% increase from 2006. TRAC Reports, ICE Prosecutions for February 2011 (May 17, 2011). Immigration-related [...]
US District Ct: Arpaio raid violates 4th Amend, might lead to tort liability
A federal judge in Arizona slammed the tactics used by the Maricopa County Sheriff’s Office (MCSO) during a February 2009 raid of a landscaping business in Phoenix. Mora v. Arpaio, No. CV-09-1719-PHX-DGC, slip op. (D. Az. April 25, 2011). District court judge David Campbell issued the order. This case involved lawful permanent resident Julian Mora and his United States citizen son Julio Mora who were on their way to Julian’s workplace, Handyman Maintenance, Inc. (HMI), where Julian was going to work and Julio was headed in search of work. About 100 meters before reaching HMI, the Moras “were [...]
U.S. Dist. Ct.: Padilla applies retroactively, but court’s admonishment can cure attorney’s deficient performance
A U.S. District Court judge in Texas recently applied Padilla v. Kentucky, 130 S. Ct. 1473 (2010), retroactively, but then went on to conclude that the noncitizen was not prejudiced because the court’s admonishment cured any deficient performance by her attorney. Marroquin v. United States, 2011 U.S. Dist. LEXIS 11406 (Feb. 4, 2011) (Crane, J.). The noncitizen in this case sought to vacate a conviction for transporting an alien entered prior to the Supreme Court’s issuance of Padilla. An Immigration Judge found that this conviction rendered her inadmissible as an “alien who [...]