Friday, December 28, 2012

ICE announces end of 287(g) agreements: death-knell to SB 1070?

On December 21, 2012, ICE issued the following press announcement:

"ICE has also decided not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program. ICE has concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases."

This announcement could herald a concluding chapter to the Arizona/Federal SB 1070 saga and copycat legislative attempts by other states to take state enforcement actions against undocumented persons independently of the federal authorities. As noted in an earlier blog post, the United States Court of Appeals for the Ninth Circuit in Melendres v Arpaio, affirmed a preliminary injunction against Phoenix Arizona's sheriff Joe Arpaio brought to protect the constitutional rights of "racially profiled"... "Latinos detained pursuant crime-suppression sweeps in response to racially charged citizen requests."

The Melendres Ninth Circuit Court noted that in 2009, "ICE modified its agreement with the Defendants such that the Defendants’ deputies no longer had Act section 287(g) authority to enforce civil immigration laws except in jails." Based upon the revocation of the federal authority, the Ninth Circuit found the state law defendants had no power under federal or state immigration law to conduct “crime suppression sweeps,” also known as “saturation patrols,” targeting Latino individuals under the task force type of model. The Court stated that "without more, the Fourth Amendment does not permit a stop or detention based solely on unlawful presence" ...."Absent suspicion that a 'suspect is engaged in, or is about to engage in, criminal activity,' law enforcement may not stop or detain an individual." Melendres, id. at 15-16.

Without renewed 287(g) agreements, in the Ninth Circuit, state law enforcement officials will lack any theoretical basis legally to enforce civil immigration laws either in the field or  the jails, under the reasoning of Melendres v Arpaio, notwithstanding state enabling legislation such as SB 1070 section 2B.

Significantly, by relying instead on Secure Communities, which involves only federal agencies, the ICE director has conceivably signaled an end to any state immigration law enforcement efforts conducted  independently of the federal government.

Wednesday, December 26, 2012

Document preparation in Arizona in the wake of USA v. Arizona

Arizona law prohibits any person to render a service for compensation that constitutes the unauthorized practice of immigration and nationality law, see A.R.S. 12-2703, but since 2003, the Arizona Supreme Court has certified non-lawyers as document preparers. They are not allowed to give legal advice but are permitted, for compensation, to fill out forms and prepare many kinds of legal documents for persons who are not represented by a lawyer. Certified legal document preparers do not require lawyer training or supervision. Most of the forms and documents concern areas of state substantive law, with no federal component. Although Arizona Supreme Court Rule 31 and administrative orders 7-201 and 7-208 which established the program, do not explicitly state that  document preparers are allowed to fill out applications for immigration and nationality benefits, the Certification and Licensing Division and the Board of Legal Document Preparers have interpreted the Rule and orders as though they do. Certified document preparers regularly advertise and offer immigration services to non-lawyers, in competition with lawyer-provided services and without necessarily meeting the federal requirements set forth by the Code of Federal Regulations..

This interpretation of the Arizona Supreme Court rule and orders conflicts with a detailed and comprehensive set of federal regulations that govern non-lawyer representatives who prepare forms and file paperwork in immigration cases before federal immigration officers and immigration judges. Under a recent U.S. Supreme Court decision, USA v. Arizona (slip opinion), federal immigration rules pre-empt state ones where an intent to pre-empt can be discerned from a pervasive federal regulation or there exists a conflict between state and federal law (id. at p.7- 8), either of which can render the state enactment unconstitutional in the area of immigration. The Arizona rules, to the extent that they permit non-lawyer document preparers to prepare immigration and nationality documentation for submission to the federal immigration authorities, have been pre-empted by the federal constitution.

The authority for document preparers to be certified as legal document preparers is Rule 31. It provides in Rule 31, (b) Authority to Practice:
“Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar.”
Section (d) lists exemptions to the rule in section (b) and at subsection (d) 24 states in relevant part:
“24. Nothing in these rules shall prohibit a certified legal document preparer from performing services in compliance with Arizona Code of Judicial  Administration, Part 7,  Chapter 2, Section 7-208 .”

Immigration and nationality documents should not be prepared or filed by a certified legal document preparer under the authority of  Rule 31 because in the area of immigration and nationality document preparation, the Rule and administrative orders are pre-empted under the federal constitution by federal regulations concerning accredited non-lawyer document preparer representatives, as set forth in the U.S. Code of Federal Regulation, 8 C.F.R §§ 292.1, 292.2; see 8 C.F.R. §1.1(i),(j),(k) and (m).

Historically, document preparers have been referred to as "notarios", a Spanish word for "notary". In certain countries that follow Napoleonic codes, such notaries are often permitted to determine the legal validity and suitability of the documents that they verify, a role that common law notaries have been denied consistently in the U.S., except  for Louisiana, where vestiges of Napoleonic law can be found. In some civil law countries such as Mexico and Italy, obtaining a license as a lawyer and practicing for a number of years may be a prerequisite to becoming a civil law notary.  Certified legal document preparers are an Arizona exception to the common law rule, by allowing a special class of non-lawyers to act in a role very similar to civil law notaries, except that certified document preparers who act as common law notaries in Arizona must also qualify independently as such.

Under federal immigration regulations, persons who are not lawyers generally must be certified by the federal Board of Immigration Appeals, which is an appellate administrative court located in the U.S. Department of Justice. Its principal function is to decide appeals from decisions of immigration judges and denials of immigration benefits by the Department of Homeland Security immigration officers.

Unlike Arizona certified legal document preparers, persons who are authorized federally to file papers for others in immigration matters include two categories:
1) federally accredited representatives, who must be nominated by federally approved non-profit religious, charitable, social service, or similar organizations established in the United States that only charge nominal fees for their services; and
2) other reputable individuals of good moral character, provided that they appear:
(i) on an individual case basis, at the request of a person entitled to representation;
(ii) file a written declaration that the appearance is without direct or indirect renumeration;
(iii) unless waived as a matter of administrative discretion, show a pre-existing relationship or connection with the person entitled to representation exists (e.g., as a relative, neighbor, clergyman, business associate or personal friend); and
(iv) without otherwise regularly engaging in immigration and naturalization practice or preparation, or holding himself or herself out to the public as qualified to do so. See 8 C.F.R §§ 292.1, 292.2; see 8 C.F.R. §1.1(i),(j),(k) and (m) for definitions of terms "practice", "representative", and "preparation".

Although both state and federal authorities provide for entity certification, the contours are very different. Only designated representatives of federally accredited organizations can prepare documents for presentation to federal immigration authorities, 8 C.F.R  § 292.2, in the state system, Business Entity Certification is required for all business entities that offer legal document preparation services, ACJA § 7-208(E)(3)(d), but in addition, preparers can work independently of a business entity with individual certification , ACJA § 7-208(E)(2)-(3)(d)(3) , and trainees can work under the supervision of a designated principal. ACJA § 7-208(D)(5). Federal accreditation must be renewed every three years, 8 C.F.R  § 292.2; by Arizona rules governing certification ACJA § 7-201(G); 7-208(G)(1), “All standard certifications expire at midnight, on June 30th of each odd numbered year”. The federal regulation of accredited representative defines clear procedures for investigation and revocation of organizational credentials 8 C.F.R  § 292.2(d); the state certification program also has other rules for filing of complaints and their disposition before the Board of Legal Document Preparers ACJA § 7-201(H), § 7-208(H); but while there are areas of similarity, the state system differs significantly from the federal one and conflicts with it.

Significantly, Arizona certified immigration and nationality document preparers are not required also to be accredited by the federal authorities. There is no analogue to the federal regulation of state law enforcement officers discussed in U.S. v. Arizona, supra,  that could justify operating the Certified Legal Document preparer program even under the aegis and direction of the federal Board of Immigration Appeals to facilitate training and regulation of state certified document preparers as federally accredited deputies.

Under Arizona state law, any individual who appeared in an immigration proceeding as a relative, friend, neighbor, clergyman, business associate or personal friend who was not also a certified document preparer or a trainee of one could be disciplined for violation of the Arizona Supreme Court rules prohibiting the practice of law without a license. Rule 31(b), unless otherwise exempted under Rule 31 (d). However, such individuals are specifically authorized by federal regulations to provide such services in the administrative discretion of the immigration official, notwithstanding a lack of state certification. 8 C.F.R  § 292.1(a)(3).

Under U.S. Supreme Court precedent, immigration certification for document preparers under Arizona Supreme Court rules should be discontinued as pre-empted legally under the U.S. Constitution.

There are important policy considerations as well for ending immigration and naturalization as a permitted area of certification for non-lawyer document preparers under Arizona law. Although the Arizona court rule and administrative orders prohibit document preparers from dispensing legal advice, in the immigration context, it is rarely, if ever, possible to separate out selection of the proper immigration forms from the provision of immigration and nationality legal advice. Most commonly, multiple forms must be prepared, each one required by an aspect of procedure that in turn itself requires knowledge of the substantive immigration and nationality law. For example, to adjust an immediate relative of a U.S. citizen to the status of a permanent resident from within the U.S., the standard of care applicable to lawyers can require as many as 10 separate forms with attachments often exceeding fifty pages. One of the optional forms is the I-131. It allows a foreign national applicant to obtain a document for travel abroad during the pendency of the adjustment proceeding, but if the foreign national has ever accrued unlawful presence, including residence or work for more than six months without permission in the U.S., the act of travel abroad may result in a bar for a period of three years before returning to the U.S., unless a waiver, which requires submission of a different form or forms, is requested and obtained. (If the time period of unlawful presence is one year or more, the period of the bar is ten years.) Because the person cannot re-enter the U.S. without a waiver during period of the bar, an adjustment petition will most likely be denied in such circumstances and the permanent residency case lost. Deciding whether to file an I-131 document or a waiver document requires an in-depth understanding of federal immigration law and the act of selecting the appropriate form of group of forms involves legal advice beyond simple filling in the blanks of a form or providing a common law notarization (see 8 C.F.R. §1.1 (m)). This example is one among many; often multiple immigration forms must be considered, with supporting documentation and analysis, some involving multiple agencies, and the desirability of using each must be judged in the multi-faceted context of each immigration case. See for a collection of forms commonly used to seek immigration and nationality benefits from the Department of Homeland Security. Where a person applies for a visa from abroad, additional forms should be submitted to the Department of State. See (immigrant visas), and (non-immigrant visas). For employment visas, the U.S. Department of Labor likely will also have jurisdiction. It has its own separate forms that must also be completed and submitted.

Selection of proper immigration forms requires the training and skills of an immigration lawyer. Immigration forms practice is not a perfunctory function. Allowing a document preparer to select immigration forms implicitly forces a preparer to practice immigration law, which is forbidden by state law, see A.R.S. 12-2703, and notwithstanding the prohibition against law practice by document preparers as stated in the Arizona Supreme Court rule and administrative orders. See also Note, "Unauthorized Practice of Law," Journal of the Legal Profession, University of Alabama, vol. 12, art. 10 pp. 154-156.

Arizona document preparers are typically certified on the basis of a 100-question, multiple question test  involving mostly property, divorce, and other areas of state law apart from federal immigration and nationality law, see  the 85-page study guide at (The sample questions given at pages 4-5 do not include one dealing with immigration and nationality law). Rarely are more than a few questions in a test devoted to immigration forms practice. Such perfunctory testing is woefully inadequate for the complex subject of immigration and nationality law. Certification of document preparers in Arizona by the Arizona Supreme Court for immigration and nationality matters should cease at once. It is both unconstitutional as an impermissible encroachment upon federal immigration and nationality regulations and is suboptimal administrative policy.

Saturday, September 29, 2012

Arizona immigration law - new 9th circuit limitation?

Without the endorsement of the Department of Homeland Security by way of a 287(g) agreement, enforcement of SB 1070's section 2B by state law enforcement officers is of doubtful constitutionality. In  Melendres v Arapaio, the United States Court of Appeals for the Ninth Circuit affirmed a preliminary injunction against Phoenix Arizona's sheriff Joe Arapaio brought to protect the constitutional rights of "racially profiled"... "Latinos detained pursuant crime-suppression sweeps in response to racially charged citizen requests." Though the Arizona immigration law was only referenced tangentially in the opinion and was not directly addressed by the Court, the express language indicates that there may be another, unforeseen (by the drafters) condition imposed upon the "show me your papers" provision that the U.S. Supreme Court in USA v. Arizona ordered be allowed to go into effect on June 25, 2012, and which by order of Judge Susan Bolton did go into effect on September 25, 2012, the same day that the Melendres opinion issued.

The defendants in Melendres claimed "authority to detain persons [they believe] are not authorized to be in the country . . . . ‘based only upon a reasonable suspicion, without more, that the person is not legally present within the United States.'" This is consistent with announced views of several other state law enforcement agencies in Arizona and has been a practice in much of the State for some time. The import of the Melendres decision is that this position is not constitutionally allowable except pursuant to deputization by the federal immigration officials of state law enforcement officials or independently only to interdict criminal law violations. Agreements allowing for immigration deputization arrangements have been authorized by Congressional legislation and are known as "287(g)" agreements. Such authorizations are of two types, or models. "Task force" models involve roving police officers empowered to act as immigration agents, while "jail" models involve police officers screening people arrested and booked into jail. See

In overturning the preliminary injunction against S.B. 1070's "show me your papers" provision, the U.S. Supreme Court overruled a facial challenge to SB 1070 in language that paralleled this distinction. See majority opinion, Section IV D. In allowing enforcement of the provision to proceed, the Court stated: "This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect." Melendres can be viewed as falling into this category of cases identified by the Court as still viable notwithstanding its decision.

The Melendres Ninth Circuit Court noted that in 2009, "ICE modified its agreement with the Defendants such that the Defendants’ deputies no longer had Act section 287(g) authority to enforce civil immigration laws except in jails." Based upon the revocation of the federal authority, the Ninth Circuit found the state law defendants had no power under federal or state immigration law to conduct “crime suppression sweeps,” also known as “saturation patrols,” targeting Latino individuals under the task force type of model. The Court stated that "without more, the Fourth Amendment does not permit a stop or detention based solely on unlawful presence" ...."Absent suspicion that a 'suspect is engaged in, or is about to engage in, criminal activity,' law enforcement may not stop or detain an individual." Melendres, id. at 15-16.

On June 25, 2012, the day that the Supreme Court announced its decision in USA v. Arizona, the Secretary of Homeland Security revoked the 287(g) task force authority of the following Arizona law enforcement agencies: The Counties of Mesa, Phoenix, Florence, Pima, Pinal, and Yavapai, as well as the Arizona Department of Corrections and Arizona Department of Public Safety, according to an ACLU website.

The revocation of task force authority places the revoked counties and agencies in a very similar legal position to the Defendant Arapaio in Melendres. S.B. 1070 Section 2B, codified as ARS § 11-1051(B) mandates state law enforcement officers where practical and when it will not hinder or obstruct an investigation to verify with the federal authorities the immigration status of every person who is stopped, detained or arrested  upon a reasonable suspicion that the person is not legally present within the United States. Under the broad language of Melendres, it is doubtful that any such detention without section 287(g) authority or probable cause to believe a crime is being committed comports with the Fourth Amendment.

Tuesday, August 14, 2012

New “Mini” Categorical Analysis for Deferred Action

Tomorrow, August 15, 2012, USCIS will begin processing applications for deferred action of arriving children (DACA), the so-called DREAM initiative of the Obama administration pending comprehensive immigration reform to give young people who were brought to the US relief from deportation and a chance to obtain employment authorization in two year increments.

Individuals will be ineligible for approval if they have been convicted of a felony, a significant misdemeanor, or three or more non-significant misdemeanors (excluding minor traffic offenses) absent exceptional circumstances, which have not been clarified. Immigration-related offenses classified as felonies and misdemeanors under state laws (such as Arizona’s SB 1070) will not be taken into consideration. Whether a state law crime is considered a felony or misdemeanor will not depend upon the classification given to it by state law. Rather, federal definitions will govern. This gives rise to a categorical analysis similar to other areas of immigration law, relying upon the Supreme Court decision in Taylor v. United States, 495 U.S. 575, (1990) and its progeny, except that the content and contours are very different. For this reason I call the analysis a “mini”-categorical one, which is applicable only to DACA.

A “felony” is an offense punishable by a potential sentence of more than one year. A misdemeanor is an offense punishable by more than five days, but less than a year. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor, but may nonetheless be taken into consideration under the totality of the circumstances.

A “significant misdemeanor” includes any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence; and drug distribution or trafficking, which are per se deemed to be significant. Other misdemeanors are significant if the sentence imposed was more than 90 days of actual imprisonment.

Whether a crime is a per se significant misdemeanor will also likely require a categorical analysis, as in other areas of immigration law. Thus federal elements will likely be applied to a burglary conviction to determine if a state law conviction actually was for burglary, regardless of how the state labels the crime. Unlike other areas of immigration law, the “modified” categorical analysis will probably not apply, as officers in the exercise of discretion presumably will be able to consider all sorts of records that might not pass a modified categorical analysis under Shepard v. United States, 544 U.S. 13 (2005), and its progeny, such a database records of law enforcement agencies and police reports. Divisible statutes are also unlikely to be considered for similar considerations.

Individuals with three or more non-significant misdemeanors not occurring on the same date and not arising out of the same act, omission or scheme of misconduct, which result in a sentence of more than five days, are also ineligible for deferred action. Minor traffic offenses, including driving without a license, will not count towards the three or more non-significant misdemeanor bar. However, DHS has stated that a person’s entire history of offenses can be considered, along with other facts, to determine whether deferred action is warranted under the totality of the circumstances.

A juvenile delinquency adjudication will not automatically disqualify an applicant from DACA relief. A minor with a delinquency adjudication will get a case-by-case review to see if the “particular circumstances” of his or her case warrant a positive exercise of discretion, though it is likely that a delinquency adjudication which otherwise would have been considered a significant misdemeanor for an adult, such as a drug offense, will be a disqualification. Expunged convictions, whether for criminal offenses or juvenile adjudications will be treated similarly; that is, they will likely not be taken into account unless they are evidence of serious misconduct. This is very different from other areas of immigration law, where expungements count as convictions.

Thus, where there has been previous contact with law enforcement, a DACA applicant should consult with competent criminal law savvy immigration counsel before applying for deferred action, as disqualification from DACA could result in removal proceedings of the individual or even family relatives listed in the application form, at some future time, if not immediately.

The guidance provided by DHS makes it possible to predict whether an individual will be disqualified by prior troubles with the law under these rules, though in the exercise of discretion, a certain level of criminal history may be waived, provided there are strong countervailing equities.

The author is indebted to the American Immigration Council's LAC for its practice advisory updates, and wishes to acknowledge and recommend this this resource.

Sunday, July 15, 2012


In the midst of the 2012 Presidential campaign, Secretary Napolitano issued a policy directive that grants deferred action to young people who are illegally present in the US and who meet certain qualifications as to education or equivalent, time in the U.S., good conduct and age.

Deferred action means a discretionary administrative hold on deportation, though the deferred action in this policy announcement was granted in two year increments, renewable. Work permits would also be available under terms applicable to other deferred actions. Deferred action may also stop the accrual of unlawful presence, which might have immigration related consequences for some people who fell out of status relatively recently.

Not bad for DREAMERs, but not a panacea either. There are still three things to worry about, since, like the Chinese logogram says, every opportunity presents danger. First, DREAMERs should beware of those who would sell them the Brooklyn bridge (DREAMERs as culturally American, should understand the expression). As of this blog post, no rules have been published stating how to apply. The forms don't even exist yet. No one has announced the fees, if any. The policy remains an idea to be implemented practically, with bureaucrats running around in circles trying to figure out the details and get it all to work within the Secretary's deadline, which is August 15, 2012. Anyone who tells you there is someone who can get a DREAMER situated right away who is not in immigration detention already is talking nonsense and is not worthy of belief.

Second, because legally the action was in the form of a policy directive from an executive branch of the Government it was easily promulgated, without Congressional action.  But the same ease also applies to repeal. If Mr. Obama changed his mind or was not re-elected, the policy could be renounced by the Secretary, either this one or her successor. People who had come forward and applied could be arrested, detained and deported on the basis of the information they had provided in the application process.

The possibility is not so far-fetched. For a time the Ninth Circuit took the position that the Clinton-era amnesty applied to persons who not only had entered illegally before April 2001 and met the legal requirements but also to those who had left the U.S. and returned illegally again. The Board of Immigration Appeals disagreed but DHS was required by law to respect the Ninth Circuit ruling. A number of undocumented people, reassured by the Court ruling, came forward and applied under grandfathered provisions of the Clinton amnesty law, many through immigration lawyers. Then the Ninth Circuit changed its mind, and disqualified the applications of the illegal returnees. Many affected persons were unaware of the change of decision. DHS called them in for "interviews", arrested them, and took them straight to Mexico. Do not pass go, do not collect $200.

Yet the affected people had filed petitions and paid money to the Government for the benefit based upon a court decision that seemed authoritative. Notwithstanding, they were expelled when someone in power changed their minds. It could happen again to DREAMERs, particularly if the Republicans regain control of the White House in 2013.

Finally, there is a nagging disconnect between the policy hold on deportation of young people and traditional criminal immigration law, which is the subject matter of this blog. Crimes that disqualify people for immigration benefits constitute a body of technical, complex, but (arguably) understandable law. The policy directive for deferred departure of young people will not follow those rules, but rather will apply a mixture of familiar and other different ones. Individuals are not eligible for deferred action if they have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety. A significant misdemeanor offense may not require jail time, and includes one prior DUI as a grounds for disqualification, which is not usually a grounds for immigration disqualification. Threats to national security or public safety likely include gang affiliation. What about juvenile offenses, which usually are not referenced either and about which the policy announcement is silent? Will they now be considered as a disqualification for deferred departure of young people? This uncertainty could pose a real threat to a number of  essentially civic-minded young people who went through an admittedly high-spirited phase once upon a time and got into trouble (likely silly) and then woke up and went straight.

As a discretionary action by administrative officials, a grant of deferred action is not appealable, not even to the courts.

DREAMERs should welcome the Secretary's action, but exercise extreme caution, lest they waken from the dream unto a nightmare.

Click the link to read more about issues affecting immigration for DREAMERs.

Sunday, June 3, 2012

Categorical and modified categorical approaches to enhanced federal sentences and immigration consequences of crimes

The categorical/modified categorical analysis is a judicial tool used by judges to enhance a sentence in a federal court criminal proceeding or determine the immigration rights of a non-citizen in immigration proceedings, in light of a prior state or federal criminal conviction, often entered pursuant to a guilty plea.

Many state criminal laws have unique or unusual provisions that differ from other state and federal criminal laws. Judges are concerned that federal consequences of prior convictions should be based upon uniform legal notions. Thus, an enhanced sentence for a federal crime or an immigration outcome should not depend on the fortuitous circumstance of the location (by state) where the prior crime took place and any legal eccentricities of its criminal justice system. The categorical/modified categorical analysis is used to determine whether a specific prior conviction matches a uniform definition under either federal law or generally accepted principles of criminal law according to academic and other respected sources. If it does not, then the prior conviction should be disregarded in the determination of a subsequent sentencing in the federal system, or an immigration proceeding. Otherwise, it must be taken into account in the current proceeding, either to enhance a federal sentence of a defendant or order removal of a respondent from the United States.

It may help to understand the process better by imagining a cooking competition between famous chefs; let us postulate that the broad category is oriental eggrolls. The cooking judges require each entrant to submit a written recipe of ingredients to them, in order to determine the proper category in which to place each contestant’s offerings. If two chefs have similar recipes, but one(Chef A)'s recipe includes a hot sauce, the ingredients of which are listed in the recipe, and another(chef B)'s recipe does not, there may not be a suitable match. Based upon the listed ingredients, there is a categorical mismatch between the entries if hot and spicy should be a separate subcategory. In such a case, the chefs will not compete against each other in the eggroll competition because they are not categorically matched against each other.

But suppose in reviewing chef B's non-hot recipe, a judge notices that the some of ingredients include unspecified “spices”. Could these unspecified spices make the eggroll sufficiently hot to create a categorical match? There is no way of knowing absent further information about the spices. It could be helpful to the judges if they had reliable information about the spices that are included in the otherwise seemingly non-spicy hot egg roll recipe of chef B. Not all information may be reliable, such as information obtained from a competitor or disgruntled former employee of Chef B, so the judges will want to be careful in the type of proof they require.If available, one relatively reliable source might be a recorded television program of chef B demonstrating the preparation of his eggrolls. In the course of the television program, assuming the spices were identified clearly to the viewer, the question could be resolved. If those spices rendered the eggrolls "hot and spicy", then based upon the written recipes as supplemented by the videotape, a modified categorical match would exist. The written recipes would not be a categorical match but with the videotape, there would be a modified categorical match, based on non-written sources, in which case, the chefs would nonetheless compete against each other in the same category. Matching the two recipes as written down and submitted to the judge is the "categorical" part of the analysis. Adding the videotape evidence is the "modified categorical" portion of the analysis.

Like the ingredients in the recipe, every crime has certain ingredients, called elements.  If two crimes, one state and one federal, had identical elements, then they can be said to have a categorical match. However, it is rare that two crimes have identical elements, even if they intend to prohibit the same criminal conduct. So the judges first dissect the crime of the prior conviction into its elements, and compare them to the elements of an equivalent federal crime or generally accepted standard definition of academic and other respected legal sources to determine if there is a categorical match. If the crimes are similar but not identical, and one or more essential elements is missing, then the judges will look to a limited set of legal documents that were connected with the prior conviction, like the videotape in the recipe's example. Permissible documents from a prior conviction include the charging document( indictment or information), a plea agreement admitting guilt, or a transcript of an exchange between the judge and defendant in open court and on the record admitting the prior crime as a factual basis for a guilty plea, or statements made by a defendant at sentencing. Impermissible documents may include police reports or witness statements (because they may include puffing or sour grapes), and presentence reports, (unless unchallenged as to their facts by the defense prior to sentencing). The permissible documents are seen as likely reliable because of the procedural safeguards in place; the latter, somewhat unreliable because of potential biases of law enforcement and possibly overzealous prosecution of the case.

Saturday, March 24, 2012

Constitutional right to a plea bargain

I was asked recently to consult on the immigration case of a detainee that was based upon a conviction for a controlled substance. The criminal defense lawyer had misunderstood the immigration consequences during the plea process and accepted a plea that categorically required removal, mistakenly believing that if the record of conviction remained unclear about the specific drug that was involved, the conviction would withstand such classification. Unfortunately for the client, the statute of conviction itself specified the drug, making removal almost inevitable. Phrased technically, because there was a categorical match between the statute of conviction and federal generic crime, there could be no opportunity to challenge removal using a modified categorical analysis based upon a divisible statute and an unclear record of the exact drug that was involved.

On March 21, 2012, in two new decisions, the United States Supreme Court extended the constitutional powers of courts over plea  negotiations of the parties, even those conducted outside of the courtroom. With these two new decisions, defense counsel's error seems more likely to lead to a reversal of a criminal conviction than ever. But if the client is removed in immigration proceedings before action can be taken in the criminal case, it is uncertain how and where such a result could be challenged, and if successful, what the appropriate remedy might be.

In Missouri v. Frye, 566 U. S. ____ (2012) , the defendant's lawyer neglected to communicate a favorable plea offer of a misdemeanor offense to the client that would have resulted only in a minimal sentence. As a result, the offer lapsed and the client plead guilty without a plea agreement to a felony with a much higher sentence.

The Supreme Court held that the Constitutional right to effective counsel extends to the negotiation of plea offers.  "The reality is that plea bargains have become so central to the administration of the criminal justice sys­tem that defense counsel have responsibilities in the plea bargain process . . . to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." The Court observed that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system" and "the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." Resting the decision on narrower grounds, the court announced that: "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."

Turning to the issue of prejudice, the court stated: "defendants must demon­strate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." Thus, the inquiry requires "looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursu­ant to the terms earlier proposed." While the court agreed that the defendant would have likely entered the lapsed plea agreement, it remanded for a determination whether the the plea agreement would have been cancelled by the prosecution inasmuch as the defendant had been convicted of a subsequent offense after the plea had been extended.

In a companion case, Lafler v. Cooper,  566 U.S. ____ (2012), a plea was offered and communicated to the defendant, but it was rejected upon advice of counsel. The defendant went to trial and was convicted. The sentence was much greater than the offered plea. The governmental attorneys conceded that the advice of defense counsel to reject the plea fell below the standard of adequate assistance of counsel.

The United States Supreme Court held that ""prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence." Applying the principle to the specific facts of the case  it stated,"Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence."

The court did impose some limits on legally cognizable prejudice. "If no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise." However, a fair trial leading to a conviction itself could not wipe the slate clean. "The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining."

In fashioning an appropriate remedy, the Supreme Court recognized that in some cases, simply a new sentence might effectively redress the constitutional violation, but where the offered plea would have been to reduced charges or the judge was bound by mandatory sentencing for the offense of conviction, another remedy for the constitutional violation should be found. In this case, the proper remedy was "to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed."

These decisions usher in a new type of constitutional right to plea bargaining which will involve the courts as overseers of the process. With regard to immigration, the new decisions were preceded by Padilla v. Kentucky, 559 U. S. ___, ___ (2010), which set aside a plea because of misinformation from counsel about its immigration consequences. In the wake of Padilla, criminal defense counsel have increasingly involved immigration consultants to assess the potential immigration consequences of a specific plea that is being considered. The relationship however can be asymmetric. Criminal defense counsel are directly involved in the criminal law attorney-client relationship, unlike the immigration consultants. Inconveniently truthful immigration advice can be brushed aside in favor of a more convenient viewpoint out of stubbornly engrained desires to present a probation-available offense to the client.

With the advent of these two new decisions, one can expect an unfavorable opinion from an immigration advisor about the wisdom of a particular plea to be taken more seriously than ever by defense counsel, as failing to report it to the client could result in a determination that the criminal attorney's advice to the client fell below the standard of care, even with other sources of conflicting advice. What remains unclear following these decisions is whether removal or inadmissibility can be included among the legally cognizable types of prejudice that will require a remedy under this new constitutional right, and what the remedy might be. The opinion in Padilla v. Kentucky, 559 U. S. ___, ___ (2010) seems to suggest strongly that the likelihood of unfavorable immigration consequences should be cognizable as a type of prejudice that will justify setting aside a conviction or sentence, but perhaps only in the criminal proceeding and not the immigration context, since the deficient performance occurred in the criminal proceeding and not in the immigration case.

In the next blog entry we will return to the fundamentals of the categorical and modified approach in criminal/immigration cases.